USA v. Arturo Bustillos-Pena

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USA v. Arturo Bustillos-Pena

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 26, 2010 N o . 09-20360 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t if f -A p p e lle e v. A R T U R O BUSTILLOS-PENA, a/k/a Arturo Pena Bustillos, a/k/a Arturo Bustillos D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e GARWOOD, STEWART, and CLEMENT, Circuit Judges. G A R W O O D , Circuit Judge: O n October 21, 2008, Arturo Bustillos-Peņa (Bustillos) pleaded guilty to v io l a t i n g 8 U.S.C. § 1326 by being knowingly and unlawfully present in the U n ite d States on or about November 18, 2005 in Huntsville, Texas, after having b e e n deported for an aggravated felony. At sentencing, over his objection, the d is t r ic t court enhanced his offense by sixteen levels on the ground that he had r e e n te r e d the United States after being convicted of a felony that was a drug t r a f fic k in g offense for which the sentence imposed exceeded thirteen months' im p r is o n m e n t.

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No. 09-20360 B u s t illo s contended at sentencing that this enhancement was improper, b e c a u s e at the time he was deported, and at the time he reentered the country, h e had only received a probated sentence. It was not until after he had been p r e s e n t in the country illegally for two years that his probation was revoked and h e was given a sentence of imprisonment that exceeded thirteen months. The d is t r ic t court overruled his objection, and he appeals his sentence. We find that the provision of the November 2008 United States Sentencing C o m m is s io n 's Guidelines Manual (Sentencing Guidelines) under which B u s t illo s 's sentence was enhanced was ambiguous and thus must be read in his fa v o r . Accordingly, for the reasons discussed below, we vacate his sentence and r e m a n d his case for re-sentencing. F A C T S AND PROCEEDINGS BELOW O n August 30, 2001, Bustillos was convicted of delivering approximately fift y -s ix pounds of marijuana in the 275th Judicial District Court of Hidalgo C o u n ty , Texas. He was sentenced to ten years' probation. On June 7, 2003, he w a s deported to Mexico. I n August 2003, Bustillos re-entered the United States illegally. Two y e a r s later, on August 31, 2005, he pled guilty to and was convicted in the 275th J u d ic ia l District court of Hidalgo County, Texas, of assaulting a public servant in June 2005. The Texas Department of Criminal Justice moved to revoke his p r o b a t io n on the marijuana offense, and the court revoked his probation and s e n te n c e d him to five years of imprisonment for the delivery of marijuana o ffe n s e and two years for the assault, to run concurrently. On November 18, 2005, an agent of United States Immigration and C u s t o m s Enforcement (ICE) discovered Bustillos in the Texas prison in

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No. 09-20360 H u n ts v ille , Texas. Bustillos was subsequently indicted for being present in the U n ite d States illegally after having been deported for an aggravated felony, in v io la t io n of 8 U.S.C. § 1326(a) and (b)(2).1 He pleaded guilty on October 21, 2008. B u s t illo s 's Pre-Sentence Investigation Report (PSR) recommended a s ix te e n -le v e l increase in his offense level under §2L1.2 of the Sentencing G u id e lin e s ,2 because it found that he had been deported after a conviction for a
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Section 1326 provides, in relevant part:

"§ 1326. Reentry of removed aliens (a) In general Subject to subsection (b) of this section, any alien who-- (1) has been . . . deported . . . and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, . . . shall be fined under Title 18, or imprisoned not more than 2 years, or both. (b) Criminal penalties for reentry of certain removed aliens Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection-- *** (2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both; *** For the purposes of this subsection, the term `removal' includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law." 8 U.S.C.A. § 1326 (West 2005) (emphasis in original).
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Section 2L1.2 provides, in relevant part: Unlawfully Entering or Remaining in the United States (a) Base Offense Level: 8 (b) Specific Offense Characteristic (1) Apply the Greatest: If the defendant previously was deported, or unlawfully remained in the United States, after-- (A) a conviction for a felony that is (i) a drug

"§ 2L1.2

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No. 09-20360 d r u g trafficking offense for which the sentence imposed exceeded thirteen m o n th s . Bustillos objected to this enhancement on the ground that a prison s e n te n c e had not been imposed until after he had reentered the country. Thus, h e argued, he had not been deported after a sentence was imposed that exceeded t h ir t e e n months. The district court found that the temporal constraint of §2L1.2 was s a t is fie d , because it viewed Bustillos's sentence as relating back to his c o n v ic t io n , which had occurred before his deportation. Accordingly, the district c o u r t adopted the PSR's recommendation over Bustillos's objection and c a lc u la t e d his offense level to be twenty-one, after subtracting three points for a c c e p t a n c e of responsibility. It found that he had eleven criminal history points, g iv in g him a criminal history category of V. After hearing his arguments for a d o w n w a r d departure, it sentenced him to sixty-nine months' imprisonment, one m o n th below his thus calculated guideline range of seventy to eighty-seven m o n th s . Bustillos timely filed a notice of appeal. D IS C U S S IO N O n appeal, Bustillos contends that the district court erred by applying the s ix te e n -le v e l enhancement to his sentence. He asserts that the plain language o f §2L1.2 indicates that the sixteen-level enhancement only applies where a d e fe n d a n t was deported after the imposition of a prison sentence exceeding t h ir t e e n months. In the alternative, he argues that the guideline is ambiguous

trafficking offense for which the sentence imposed exceeded 13 months; . . . increase by 16 levels . . . ." U.S.S.G. §2L1.2 (emphasis in original).

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No. 09-20360 o n the facts of his case and that the rule of lenity requires it to be interpreted in h is favor. I . Standard of Review W e review a district court's interpretation of the Sentencing Guidelines de n o v o . United States v. Velez-Alderete, 569 F.3d 541, 543 (5th Cir. 2009) (per c u r ia m ); United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en b a n c ) (per curiam). I I . Applicability of the Enhancement B u s t illo s argues that, in order for the sixteen-level enhancement to apply, a defendant must be given a prison sentence in excess of thirteen months before h e is deported. The Government disagrees, arguing that when the sentence is im p o s e d is irrelevant, so long as the conviction precedes the deportation. In its v ie w , any sentence that is later imposed on that conviction after the defendant's ille g a l reentry automatically relates back to the date of the conviction and s a t is fie s the temporal requirement of §2L1.2. The Government contends that its reading is compelled by our opinion in U n ite d States v. Compian-Torres, 320 F.3d 514 (5th Cir. 2003). There, the d e fe n d a n t had received a probated sentence in 1994. Id. at 515. This sentence w a s revoked in 2000, and he was sentenced to two years' imprisonment. Id. He w a s deported after he received his sentence of imprisonment, and he thereafter r e e n te r e d illegally. See id. at 514­15 & n.1. He pleaded guilty to illegal reentry, a n d the district court applied the sixteen-level enhancement under §2L1.2 at s e n te n c in g . Id. at 514­15. On appeal, he argued that this enhancement was im p r o p e r , because at the time of his conviction, he had received only a probated s e n te n c e , not a sentence of imprisonment. Id. He argued that the sentence he

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No. 09-20360 h a d received upon the revocation of his probation could not be considered under § 2 L 1 .2 , because it was for a separate offense and because "sentence imposed" s h o u ld be read "sentence originally imposed." Id. R e v ie w in g the judgment of the district court, we found that "[u]nder both fe d e r a l and state law a sentence imposed upon revocation of probation is treated a s a sentence on the original underlying offense. . . . [N]ot . . . a sanction for the n e w conduct . . . ." Id. at 516. We also found no basis for his claim that " s e n t e n c e imposed" meant "sentence originally imposed." Id. at 515.

Accordingly, we rejected his argument and held that the term of imprisonment h e had received at his revocation hearing was part of the sentence imposed on h is conviction for the purposes of the guideline. Id. We concluded that the d is t r ic t court had applied the sixteen-level enhancement correctly. Id. at 517. O u r holding in Compian-Torres does not control this case. In CompianT o r r e s , the defendant's probation was revoked before he was deported. Thus, we h a d no reason to address whether or not the sixteen-level enhancement applies w h e r e the revocation sentence is imposed after a defendant's illegal reentry. Our determination in Compian-Torres that "sentence imposed" did not mean " s e n t e n c e originally imposed" also has no effect on this case. Bustillos does not a r g u e that we should imply "originally" into §2L1.2. Nor does he contest that a r e v o c a t io n sentence is a sentence on the same conduct and conviction as the p r o b a t e d sentence it supersedes. Instead, he argues that, under the plain

la n g u a g e of §2L1.2, the sixteen-level enhancement cannot be applied unless the d e fe n d a n t received a prison sentence exceeding thirteen months before he was d ep orted . T h e government argues that the plain language of the enhancement only

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No. 09-20360 in d ic a te s that the drug trafficking conviction must precede the deportation of the d e fe n d a n t . It argues that when the sentence is imposed is irrelevant. It also a s serts that this interpretation is supported by the commentary to §2L1.2, which p r o v id e s that: " `S e n t e n c e imposed' has the meaning given the term `sentence of im p r is o n m e n t ' in Application Note 2 and subsection (b) of §4A1.2 (D e fin it io n s and Instructions for Computing Criminal History), w it h o u t regard to the date of the conviction. The length of the s e n t e n c e imposed includes any term of imprisonment given upon r e v o c a t io n of probation, parole, or supervised release." USSG § 2 L 1 .2 , comment. (n.1). A p p lic a t io n Note 2 of §4A1.2 states that "[t]o qualify as a sentence of im p r is o n m e n t , the defendant must have actually served a period of im p r is o n m e n t on such sentence . . . ." USSG §4A1.2, comment. (n.2). Subsection (b ) of §4A1.2 provides: "(b ) S e n t e n c e of Imprisonment (1 ) T h e term `sentence of imprisonment' means a sentence o f incarceration and refers to the maximum sentence im p o s e d . (2 ) I f part of a sentence of imprisonment was suspended, `s e n t e n c e of imprisonment' refers only to the portion t h a t was not suspended." U S S G §4A1.2(b) (emphasis in original). T h e government's interpretation of §2L1.2 has some support in the c o m m e n ta r y 's statement that "sentence imposed" is to be determined "without r e g a r d to the date of the conviction." However, Bustillos argues that this

s t a t e m e n t is subservient to the enhancement's overarching requirement that a d e fe n d a n t have been deported "after" the imposition of the sentence. B u s t illo s 's interpretation is the most natural reading of §2L1.2 and its c o m m e n ta r y . The guideline covers the act of illegal reentry. The purpose of the 7

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No. 09-20360 s ix te e n -le v e l enhancement is to ensure that a defendant who reenters the United S t a t e s illegally after having committed a serious crime is punished more s e v e r e ly than a defendant who reenters the country illegally without having c o m m it t e d a serious crime. The seriousness of a defendant's previous crime is m e a s u r e d by looking at the type of conviction and the length of the sentence he r e c e iv e d . This, in turn, determines the seriousness of the illegal reentry. Illegal r e e n tr y by a defendant who received a probated sentence is not as great a cause fo r concern as illegal reentry by a defendant who was given an actual sentence o f imprisonment for the same offense, because the probated defendant's offense w a s not deemed to be as serious by the court of conviction. Bustillos's

in t e r p r e t a t io n allows the guideline to punish the probated defendant more le n ie n t ly than the defendant who reentered after receiving an actual sentence. The Government's interpretation would treat these two defendants the same if, s o m e t im e after he reentered the country, the probated defendant's probation w e r e revoked. It seems counterintuitive that a guideline enhancement designed to r e fle c t the nature of a defendant's illegal reentry offense could be triggered by u n r e la t e d conduct that occurred long after the reentry. Cf. Carachuri-Rosendo v . Holder, No. 09­60, slip op. at 10 (U.S. June 14, 2010) ("[I]n this case the G o v e r n m e n t argues for a result that `the English language tells us not to expect,' s o we must be `very wary of the Government's position.'" (quoting Lopez v. G o n z a le z , 127 S.Ct. 625, 630 (2006))). Unrelated conduct is normally assessed in the form of criminal history points or, where the court departs from the S e n te n c in g Guidelines, as part of the 18 U.S.C. § 3553(a) factors. U .S .C .A . § 3553(a) (West 2000 & Supp. 2010); USSG Ch. 4. See 18

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No. 09-20360 T h e Government's interpretation also thwarts one of the purposes of the S e n te n c in g Guidelines. The Guidelines were designed in part to create

" r e a s o n a b l e uniformity in sentencing by narrowing the wide disparity in s e n te n c e s imposed for similar criminal offenses committed by similar offenders." USSG Ch. 1, Pt. A. Under the Government's interpretation, it is possible for two d e fe n d a n t s who committed identical acts to receive widely disparate guideline r a n g e s . One of the conditions of virtually every probation is that a defendant not b r e a k the law. A defendant need not be convicted of criminal conduct in order t o have his probation revoked, so long as the conduct is proved by a p r e p o n d e r a n c e of the evidence at his revocation hearing. 18 U.S.C.A. §

3 5 8 3 (e )(3 ) (West Supp. 2010); United States v. Jang, 574 F.3d 263, 265 (5th Cir. 2 0 0 9 ); Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Illegal reentry is a violation of federal law. Thus, a defendant who was sentenced to probation a n d deported, and who later reentered illegally, could have his probation r e v o k e d by state authorities if they discovered that he had reentered illegally. If he were sentenced to more than thirteen months' imprisonment and were later fo u n d in state custody by ICE officials, he could then be charged with illegal r e e n t r y and have his offense level enhanced by sixteen levels under the G o v e r n m e n t 's interpretation. Meanwhile, a second defendant with an identical c r im in a l history who also illegally reentered, but was fortunate enough to be a p p r e h e n d e d by ICE before the state authorities, would have a much lower s e n te n c e for his guideline range, even if the state later revoked his probation b a s e d on his federal conviction. In contrast, under Bustillos's interpretation, b o th defendants would receive identical guideline ranges. Four other circuit courts have examined the language of §2L1.2 and

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No. 09-20360 r e a c h e d different conclusions. The Second Circuit adopted the Government's v ie w , holding that what matters in satisfying the temporal constraint on the s ix te e n -le v e l enhancement is the date of the conviction, not the date upon which t h e sentence was imposed. United States v. Compres-Paulino, 393 F.3d 116, 118 (2 d Cir. 2004). The Eleventh Circuit adopted Bustillos's position. United States v . Guzman-Bera, 216 F.3d 1019, 1021 (11th Cir. 2000). The Tenth Circuit found t h a t a district court did not plainly err by adopting the Government's approach, b u t noted that it might have reached a different result if error had been p r e s e r v e d , because "[a] careful examination of the context and purposes of § 2 L 1 .2 might convince us that Defendant's interpretation is the correct one." United States v. Ruiz-Gea, 340 F.3d 1181, 1188 (10th Cir. 2003). In reviewing a sentence based on facts analogous to those we addressed in Compian-Torres, t h e Ninth Circuit found that the sixteen-level enhancement was appropriate, as w e did, but stated that it was only appropriate where the defendant's term of im p r is o n m e n t was imposed "prior to his deportation and reentry". United States v . Jimenez, 258 F.3d 1120, 1125­26 (9th Cir. 2001). Thus, the Ninth Circuit's in t e r p r e t a t io n of §2L1.2 favors Bustillos's approach. A lt h o u g h we find Bustillos's reading of the guideline to be the most n a t u r a l, we also recognize that the Government's interpretation is plausible. Therefore, we hold that the language of §2L1.2 and its commentary does not p la in ly support either position. That four other circuits have considered the is s u e and arrived at different conclusions supports this holding. " T h e rule-of-lenity fosters the constitutional due-process principle `that no in d iv id u a l be forced to speculate, at peril of indictment, whether his conduct is p r o h ib it e d .'" United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001) (quoting

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No. 09-20360 D u n n v. United States, 99 S.Ct. 2190, 2197 (1979)). "`The rule of lenity . . . a p p lie s only when, after consulting traditional canons of statutory construction, [a court is] left with an ambiguous statute.'" Rivera, 265 F.3d at 312 (quoting U n ite d States v. Shabani, 115 S.Ct. 382, 386 (1994) (emphasis added)) (a lt e r a t io n in original). Although the provisions of the Sentencing Guidelines a r e not statutes, we apply the rule of lenity to them when we find that they are a m b ig u o u s . See, e.g., United States v. Skilling, 554 F.3d 529, 595 (5th Cir. 2009), v a c a te d in part on other grounds, _____ S.Ct. ____, No. 08-1394, 2010 WL 2 5 1 8 5 8 7 (U.S. June 24, 2010). In this case, we find that the applicability of the sixteen-level en h a n cem en t under §2L1.2 of the Sentencing Guidelines is ambiguous where the d e fe n d a n t was deported before being sentenced to more than thirteen months of im p r is o n m e n t on a conviction that predated his deportation and where the d e f e n d a n t was convicted of illegal reentry while incarcerated.3 Therefore, we

We would reach a different result if Bustillos had been released from state confinement and voluntarily remained in the United States before being apprehended by ICE agents. If that had happened, our analysis would change, because 8 U.S.C. § 1326(a) not only makes it illegal for an alien who has been deported to "enter" the United States, but also makes it illegal for him to be "found in" the United States after deportation. 8 U.S.C.A. § 1326(a) (West 2005). Similarly, the sixteen-level enhancement under §2L1.2 can be triggered where following his deportation for a drug trafficking offense the alien "remained in" the United States after a prison sentence exceeding thirteen months was imposed for the drug trafficking offense. USSG §2L1.2. If Bustillos had been apprehended by ICE after being released from state custody and after being given an opportunity to return to Mexico voluntarily, the sixteen-level enhancement under §2L1.2 would have been proper, because it could have been said that he had "unlawfully remained in the United States, after . . . a conviction for a felony that is . . . a drug trafficking offense for which the sentence imposed exceeded 13 months." USSG §2L1.2. Under those facts, his drug trafficking conviction and its sentence in excess of thirteen months would have preceded his offense of remaining in the United States illegally. However, on the actual facts of this case, the Government could not justify the sixteen-level enhancement under the portion of the guideline that punishes remaining in

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No. 09-20360 h o ld that the rule of lenity applies and that it is error to implement the sixteenle v e l enhancement under these circumstances. Accordingly, we hold that the d is t r ic t court erred by enhancing Bustillos's offense level under §2L1.2(b)(1)(A). CONCLUSION F o r the foregoing reasons, we vacate Bustillos's sentence and remand his c a s e for re-sentencing in accordance with this opinion. VACATED and REMANDED.

the United States, because ICE agents found Bustillos already in prison. An alien does not violate the law if he is involuntarily present in the United States. See United States v. Parga-Rosas, 238 F.3d 1209, 1213­14 (9th Cir. 2001); United States v. Berrios-Centeno, 250 F.3d 294, 298­300 (5th Cir. 2001). At the time he was found in state prison, Bustillos was no longer voluntarily present in the United States. Therefore, his presence in the United States did not violate 8 U.S.C. § 1326(a) after he was apprehended by the state of Texas, and it could not have justified the sixteen-level enhancement imposed by the district court. Bustillos did not object to his indictment, which charged him with violating the law by being present in the United States on the date he was found in prison. He also did not raise this issue as error before this court. Accordingly, we do not address it in this opinion.

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No. 09-20360 E D I T H BROWN CLEMENT, Circuit Judge, dissenting: I respectfully dissent from the majority's decision to vacate Bustillos's s e n te n c e and remand for re-sentencing because I believe that the enhancement a p p lie d by the district court is supported by an unambiguous guideline provision, o b v ia t in g the need to reach the rule of lenity. B u s t illo s 's interpretation of the guideline provision, adopted as "the most n a t u r a l reading" by the majority, creates two conditions that must be satisfied in sequence before it can be applied: first, the defendant must be convicted of a d r u g trafficking offense for which he is sentenced to over thirteen months of im p r is o n m e n t ; and second, the defendant must be deported after the first c o n d itio n has been met (i.e., the conviction and qualifying sentence must take p la c e before deportation). This interpretation misconstrues the plain text of § 2L1.2 of the sentencing guidelines. The text of that section does not enhance t h e sentence of a defendant who was deported after being sentenced to thirteen o r more months of imprisonment. Instead, it enhances the sentence of a d e fe n d a n t who is deported after he is convicted for a felony that is, as relevant h e r e , "a drug trafficking offense for which the sentence imposed exceeded 13 m o n t h s ." U.S.S.G. § 2L1.2(b)(1)(A)(i). It is the law of this circuit that "[a] s e n te n c e imposed on revocation is actually `imposed' as described in [§ 2L1.2(b)(1)(A)(i)]." United States v. Compian-Torres, 320 F.3d 514, 515 (5th C ir . 2003).1

This interpretation reflects the same understanding of § 2L1.2 as that embodied in application note 1(B)(vii), which went into effect ten months after Compian-Torres was decided. That application note makes clear that the "length of the sentence imposed includes any term of imprisonment given upon revocation of probation." U.S.S.G. § 2L1.2 cmt. n.1(B)(vii) (2008) (emphasis added). An application note "that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is

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No. 09-20360 T h e district court properly determined that Bustillos's pre-deportation 2 0 0 1 Texas conviction for marijuana delivery constituted a conviction for a "drug t r a ffic k in g offense." Once that requirement was met, all that remained was for t h e court to determine whether the "sentence imposed" for the conviction " e x c e e d e d 13 months." U.S.S.G. § 2L1.2(b)(1)(A)(i). The term "`[s]entence

im p o s e d ' has the meaning given the term `sentence of imprisonment' in A p p lic a t io n Note 2 and subsection (b) of §4A1.22 . . . without regard to the date o f conviction. The length of the sentence imposed includes any imprisonment g iv e n upon revocation of probation . . . ." U.S.S.G. § 2L1.2, cmt. n.1(B)(vii) (e m p h a s e s added). After the district court properly determined that the sentence im p o s e d for Bustillos's 2001 drug trafficking conviction was five years' im p r is o n m e n t , she properly applied the sixteen-level enhancement. " I t is well established that our interpretation of the Sentencing Guidelines is subject to the ordinary rules of statutory construction . . . . If the language of t h e guideline is unambiguous, our inquiry begins and ends with an analysis of t h e plain meaning of that language." United States v. Carbajal, 290 F.3d 277, 2 8 3 (5th Cir. 2002) (citation omitted). Because the language of § 2L1.2 is u n a m b ig u o u s , the majority's foray into the "purpose" of § 2L1.2 is unnecessary.

inconsistent with, or a plainly erroneous reading of, that guideline." United States v. Johnson, 559 F.3d 292, 295 n.4 (5th Cir. 2009) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). Application Note 2 of § 4A1.2 states that "[t]o qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence . . . ." U.S.S.G. § 4A1.2, cmt. n.2. Subsection (b) of § 4A1.2 provides: (b) Sentence of Imprisonment (1) The term "sentence of imprisonment" means a sentence of incarceration and refers to the maximum sentence imposed. (2) If part of a sentence of imprisonment was suspended, "sentence of imprisonment" refers only to the portion that was not suspended. U.S.S.G. §4A1.2(b) (emphasis in original). Bustillos's sentence clearly qualifies as a "sentence of imprisonment."
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No. 09-20360 I t also misses the point--the majority errs when it states that "[i]llegal reentry b y a defendant who received a probated sentence is not as great a cause for c o n c e r n as illegal reentry by a defendant who was given an actual sentence of im p r is o n m e n t for the same offense, because the probated defendant's offense w a s not deemed to be as serious by the court of conviction." Maj. Op., supra at 8 . But the law of this circuit, and many other circuits, is that the seriousness of a n infraction is determined retroactively. See, e.g., Compian-Torres, 320 F.3d at 5 1 6 (collecting cases). The critical inquiry into the seriousness of a prior in fr a c tio n , therefore, is to be made by the court that sentences the defendant for t h e illegal reentry, not "the court of conviction." And an originally-probated d e fe n d a n t who reenters, violates his probation, and is imprisoned, should be t r e a t e d no differently under the guidelines than an originally-imprisoned d e fe n d a n t . Once the probated defendant violates his probation in a manner that c a u s e s him to be imprisoned, his crime becomes equally serious under the g u id e lin e s as the crime of the originally-imprisoned defendant. S e c t io n 2L1.2 imposes a greater enhancement upon a defendant whose p r e - d e p o r ta t io n conviction is more serious, measured by the duration of the p r is o n sentence imposed for that conviction, as determined at the time of s e n te n c in g for the illegal reentry. The date that the prison sentence is imposed r e l a t iv e to the date of the defendant's deportation is of no import under the g u id e lin e or its application notes. Nor should it be, since post-deportation, p r o b a t io n -r e v o k i n g conduct (like Bustillos's assault on a public servant) that t r ig g e r s imposition of a qualifying sentence for the pre-deportation conviction d e m o n s t r a t e s the seriousness of that original conviction. See United States v. M o r e n o -C is n e r o s , 319 F.3d 456, 458 (9th Cir. 2003) ("A defendant who does not a b id e by the terms of his probation has demonstrated that he should not have b e e n given probation in the first place."). The guideline is unambiguous and the majority's application of the rule of 15

Case: 09-20360

Document: 00511185049

Page: 16

Date Filed: 07/26/2010

No. 09-20360 le n ity is therefore inappropriate. Accordingly, I respectfully dissent.

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