USA v. Martin Guillen-Cruz

Filing

PUBLISHED OPINION FILED. [16-40131 Vacated and Remanded] Judge: WED , Judge: JLD , Judge: LHS Mandate pull date is 05/01/2017 for Appellant Martin Guillen-Cruz [16-40131]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40131

United States Court of Appeals
Fifth Circuit

FILED
April 10, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
MARTIN GUILLEN-CRUZ, also known as Martin Guillen-Martinez,
Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
Defendant-Appellant Martin Guillen-Cruz pleaded guilty to being found
in the United States after a previous deportation in violation of 8 U.S.C.
§ 1326(a) and (b).

The probation officer who prepared Guillen-Cruz’s

presentence report (PSR) added eight points to his offense level because he had
a prior conviction for exporting defense articles on the United States Munitions
List without a license in violation of 22 U.S.C. § 2778(b)(2) and (c). The PSR
concluded that Guillen-Cruz’s conviction constituted a prior aggravated felony
for purposes of the United States Sentencing Guidelines (USSG or Guidelines)

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§ 2L1.2(b)(1)(C), 1 as defined in 8 U.S.C. § 1101(a)(43)(C). After all the factors
were accounted for, the PSR calculated Guillen-Cruz’s offense level as 14. At
sentencing, the district court reduced the offense level to 13, resulting in an
advisory sentencing range of 18 to 24 months’ imprisonment. The district court
sentenced Guillen-Cruz to 24 months’ imprisonment.
Guillen-Cruz appeals, asserting an argument he did not raise below: the
district court inappropriately imposed a sentencing enhancement pursuant to
USSG § 2L1.2(b)(1)(C).

Because we find that the district court erred in

imposing the enhancement, that each factor of plain error review is satisfied,
and that the error merits the exercise of our discretion, we VACATE GuillenCruz’s sentence and REMAND for resentencing.
I
This court reviews the district court’s interpretation of the Guidelines de
novo. United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000). Because
Guillen-Cruz did not raise an objection to the enhancement before the district
court, we review for plain error. See United States v. Hernandez, 690 F.3d 613,
620 (5th Cir. 2012). To establish plain error, Guillen-Cruz must show: (1) an
error or defect “that has not been intentionally relinquished or abandoned”; (2)
that the legal error was “clear or obvious, rather than subject to reasonable
dispute”; and (3) that the error affected his substantial rights. United States
v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett
v. United States, 556 U.S. 129, 135 (2009)).

If these three elements are

satisfied, we have the discretion to remedy the error “if the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.
(quoting Puckett, 556 U.S. at 135).

This section was recently amended. Citations to the Guidelines refer to the section
that was in effect at the time Guillen-Cruz was sentenced.
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II
Under USSG § 2L1.2(b)(1)(C), a district court must increase a
defendant’s offense level by eight if the defendant has previously been deported
after a conviction for an aggravated felony.

“Aggravated felony” has the

meaning given that term at 8 U.S.C. § 1101(a)(43), which contains a lengthy
list of offenses and categories of offenses.

The Government argues that

Guillen-Cruz’s prior conviction under 22 U.S.C. § 2778 qualifies as an
aggravated felony either under 8 U.S.C. § 1101(a)(43)(C), defining aggravated
felony as “illicit trafficking in firearms,” “destructive devices,” or “explosive
materials,” or under § 1101(a)(43)(E)(ii), defining aggravated felony as an
offense described in 18 U.S.C. § 924(b).
A
When considering whether a defendant’s prior conviction constitutes an
aggravated felony, “courts use what has become known as the ‘categorical
approach’: They compare the elements of the statute forming the basis of the
defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense
as commonly understood.” Descamps v. United States, 133 S. Ct. 2276, 2281
(2013). However, “[i]f the statute of conviction defines multiple offenses, at
least one of which does not describe an aggravated felony, we apply a modified
categorical approach.” Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir.
2006). This modified categorical approach allows for examination of specified
documents to determine under which subsection of a divisible statute the
individual was convicted. Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005).
For guilty plea convictions, this “may include consideration of the ‘charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented.’” Id.
(quoting Shepard v. United States, 544 U.S. 13, 20–21 (2005)). Usually, courts
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must first determine whether to apply the categorical or modified categorical
approach. See generally Mathis v. United States, 136 S. Ct. 2243 (2016).
However, because Guillen-Cruz’s prior offense is not an aggravated felony
under either approach, we pretermit deciding which approach is applicable. 2
B
1
Guillen-Cruz’s sentence was enhanced based on a violation of 22 U.S.C.
§ 2778(b)(2) and (c), which prohibit the willful export of articles on the
Munitions List, 22 C.F.R. § 121.1, without a license. Guillen-Cruz argues that
his conviction is not an aggravated felony because he was convicted of
exporting high-capacity rifle magazines, which he contends is conduct that
does not fall under the definition of aggravated felony at 8 U.S.C.
§ 1101(a)(43)(C). The Government does not argue to the contrary, instead
asserting that Guillen-Cruz cannot meet his burden on plain error review
because no case establishes that a conviction under 22 U.S.C. § 2778(b) and (c)
does not qualify as an aggravated felony.
The Government is correct that, generally, “if a defendant’s theory
requires the extension of precedent, any potential error could not have been
‘plain.’”

United States v. Guzman, 739 F.3d 241, 246 n.8 (5th Cir. 2014)

(quoting United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005)).
However, this court has found clear error in the absence of precedent where
the plain language of the prior offense statute clearly criminalized conduct

The Government argues that it is unclear “whether, or to what extent, the categorical
or modified categorical approaches” should be used in a case where a defendant’s prior
conviction is for a federal offense. However, this court has previously held that the
categorical and modified categorical approaches apply when determining whether a prior
federal conviction constitutes an aggravated felony under § 1101(a)(43)(C). See, e.g., FrancoCasasola v. Holder, 773 F.3d 33, 36–37 (5th Cir. 2014).
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outside of the Guidelines offense. See United States v. Maturin, 488 F.3d 657,
663 (5th Cir. 2007).

To our knowledge, no court has previously decided

whether a conviction under 22 U.S.C. § 2778(b)(2) and (c) constitutes an
aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(C). Notwithstanding
the lack of precedent, it is plain from the face of the relevant statutes and
regulations that it does not.
As used in the relevant sentencing provision, USSG § 2L1.2(b)(1)(C),
“’aggravated felony’ has the meaning given that term in section 101(a)(43) of
the

Immigration

and

Nationality

Act

(8

U.S.C.

§

1101(a)(43)).”

Section 1101(a)(43)(C) defines aggravated felony as “illicit trafficking in
firearms or destructive devices (as defined in [18 U.S.C. § 921]) or in explosive
materials (as defined in [18 U.S.C. § 841(c)]).” Under 18 U.S.C. § 921(a)(3), a
“firearm” is defined as “(A) any weapon (including a starter gun) which will or
is designed to or may readily be converted to expel a projectile by the action of
an explosive; (B) the frame or receiver of any such weapon; (C) any firearm
muffler or firearm silencer; or (D) any destructive device.”

A “frame or

receiver” is the “part of a firearm which provides housing for the hammer, bolt
or breechblock and firing mechanism, and which is usually threaded at its
forward portion to receive the barrel.”

27 C.F.R. § 479.11.

The term

“destructive device” means “any explosive, incendiary, or poison gas” bomb,
grenade, mine, rocket, missile, or similar device. 18 U.S.C. § 921(a)(4)(A). A
destructive device may also be “any type of weapon . . . which will, or which
may be readily converted to, expel a projectile by the action of an explosive or
other propellant, and which has any barrel with a bore of more than one-half
inch in diameter.”

Id. § 921(a)(4)(B).

Destructive devices include “any

combination of parts either designed or intended for use in converting any
device into any destructive device described [above] and from which a
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destructive device may be readily assembled.” Id. § 921(a)(4)(C). “‘Explosive
materials’ means explosives, blasting agents, and detonators.” Id. § 841(c).
A magazine is an element of a firearm that houses ammunition. See
United States v. Gonzalez, 792 F.3d 534, 535–36 (5th Cir. 2015) (including a
helpful primer on magazines). Under the definitions discussed above, a rifle
magazine is plainly not a “firearm” or “the frame or receiver” of a firearm or a
“muffler or firearm silencer.” See 18 U.S.C. § 921(a)(3). Nor is a magazine a
“destructive device” for purposes of § 921(a)(4)(A). The closest apparent match
is a sub-definition of destructive device that includes “any type of weapon [or
combination of parts] . . . which will, or which may be readily converted to,
expel a projectile by the action of an explosive or other propellant, and which
has any barrel with a bore of more than one-half inch in diameter.” Id. at
§ 921(a)(4)(B)–(C). However, Guillen-Cruz’s prior conviction was for export of
magazines that hold 7.62x39 millimeter ammunition, and the statute requires
that a weapon or “combination of parts” to create such weapon must have a
“barrel with a bore of more than one-half inch in diameter.” Id. Even if a
magazine could constitute a subset of a “combination of parts” for purposes of
this provision, the barrel bore for a weapon that uses 7.62 millimeter, or .3
inch, ammunition, would not be more than half-an-inch in diameter. 3
There is no definition in 18 U.S.C. § 841(c) or § 921 that, on its face,
includes rifle magazines.

Thus, under the modified categorical approach,

enhancing Guillen-Cruz’s sentence based on a prior conviction for exporting
rifle magazines constituted a clear or obvious error.

The caliber of a firearm corresponds with the caliber of the bullet that the firearm
will project. See NATIONAL RESEARCH COUNCIL’S COMMITTEE TO ASSESS THE FEASIBILITY,
ACCURACY AND TECHNICAL CAPABILITY OF A NATIONAL BALLISTICS DATABASE, BALLISTIC
IMAGING 36 (NAT’L ACADEMIES PRESS 2008).
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The error is even more plain under the categorical approach: Articles on
the Munitions List include items that clearly do not fit within the relevant
definitions, such as “[w]arships and other combatant vessels,” and “[r]adar
systems and equipment.” 22 C.F.R. § 121.1. This renders a conviction under
22 U.S.C. § 2778(b)(2) and (c) categorically broader than the generic offense,
“illicit trafficking in firearms,” “destructive devices,” or “explosive materials,”
8 U.S.C. § 1101(a)(43)(C). Thus, “it is indisputably clear from a reading of the
plain statutory language” that a conviction for exporting an item on the
Munitions List is not an aggravated felony. See Maturin, 488 F.3d at 663.
2
The Government contends that even if Guillen-Cruz’s conviction is not
an aggravated felony under § 1101(a)(43)(C), his prior conviction satisfies the
definition of aggravated felony at § 1101(a)(43)(E)(ii), which includes
“offense[s] described in . . . [18 U.S.C. § 924 (b)] (relating to firearms offenses).”
Specifically, the Government claims that Guillen-Cruz’s 22 U.S.C. § 2278
conviction proves an offense described in 18 U.S.C. § 924(b), which states:
Whoever, with intent to commit therewith an offense punishable
by imprisonment for a term exceeding one year, or with knowledge
or reasonable cause to believe that an offense punishable by
imprisonment for a term exceeding one year is to be committed
therewith, ships, transports, or receives a firearm or any
ammunition in interstate or foreign commerce shall be fined under
this title, or imprisoned not more than ten years, or both.
The Government argues that rifle magazines are “ammunition” for purposes of
this statute, and points to a Fourth Circuit case that, it claims, stands for the
proposition that proving a 22 U.S.C. § 2778 offense necessarily proves a
violation of 18 U.S.C. § 924(b). See United States v. Wilson, 721 F.2d 967, 971
(4th Cir. 1983). Guillen-Cruz argues, inter alia, that the “relating to firearms
offenses” parenthetical indicates exclusion of ammunitions offenses and that
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the Fourth Circuit’s decision in Wilson dealt specifically with convictions for
“transport of firearms in foreign commerce with intent to commit a felony,” not
all 22 U.S.C. § 2778(b) convictions.
While incorporating 18 U.S.C. § 924(b) by reference, the definition of
aggravated felony at 8 U.S.C. § 1101(a)(43)(E)(ii) specifies “(relating to
firearms offenses).” The Government cites an unpublished Ninth Circuit case
and a Board of Immigration Appeals case holding that, notwithstanding the
parenthetical, ammunitions offenses qualify as aggravated felonies for
purposes of § 1101(a)(43)(E)(ii). Ruvalcaba-Castorena v. Lynch, 637 F. App’x
420, 420 (9th Cir. 2016); In re Oppedisano, 26 I. & N. Dec. 202, 203–06 (BIA
2013). The Government argues that these and other cases, which hold that
“relating to” language was descriptive rather than restrictive, show that the
parenthetical does not exclude ammunitions—as opposed to firearms—
offenses. This understanding comports with this court’s reading of at least one
other “relating to” parenthetical in § 1101(a)(43). See Ruiz-Romero v. Reno,
205 F.3d 837, 839–40 (5th Cir. 2000) (“relating to alien smuggling”
parenthetical at § 1101(a)(43)(N) was merely descriptive and not restrictive);
United States v. Monjaras-Castaneda, 190 F.3d 326, 331 (5th Cir. 1999) (same).
Moreover, it comports with a reading of the other subsections of § 1101(a)(43),
which reference a number of statutes and frequently include a “relating to”
parenthetical, even where all of the offenses referenced in the statute “relate
to” the enumerated offense. See, e.g., § 1101(a)(43)(D) (referring to “an offense
described in section 1956 of title 18,” which is the section for “[l]aundering of
monetary instruments,” and specifying “(relating to laundering of monetary
instruments)”); § 1101(a)(43)(J) (referring to 18 U.S.C. § 1962, which lists only
racketeer influenced corrupt organizations offenses, and specifying “(relating
to racketeer influenced corrupt organizations)”). If the “relating to” language
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were intended to be restrictive, it would be mere surplusage in each of these
examples. See Luster v. Collins (In re Collins), 170 F.3d 512, 512 (5th Cir.
1999) (“The canons of interpretation are suspicious of surplussage [sic].”).
Thus, we find the “relating to firearms offenses” parenthetical is descriptive,
rather than limiting.
However, even without any limitation, the Government cannot establish
its alternative basis for affirmance. First, we disagree with the Fourth Circuit
to the extent it held that “proof of all the elements of [22 U.S.C.] § 2778
automatically proves a [18 U.S.C.] § 924(b) violation.” Wilson, 721 F.2d at 971.
That cannot be true, as a conviction under 22 U.S.C. § 2278(b) and (c) could be
sustained if an individual exported a warship or “[r]adar systems and
equipment,” 22 C.F.R. § 121.1, items which are plainly not anticipated by the
firearms or ammunition offenses listed in 18 U.S.C. § 924(b). Second, 7.62x39
millimeter magazines are neither “firearms” nor “ammunition” for purposes of
§ 924(b). Firearm, as used in § 924(b) has the same definition discussed in the
previous section, see § 921(a)(3), and does not include magazines for the
reasons previously explained.

Ammunition is defined as “ammunition or

cartridge cases, primers, bullets, or propellant powder designed for use in any
firearm.” 18 U.S.C. § 921(a)(17)(A). A magazine is not any of these items, but
a part that “stores [bullet] cartridges in a column and attaches to the firearm.”
Gonzalez, 792 F.3d at 536. The Government cites no case in support of its claim
that a magazine is ammunition. A plain reading of the relevant statutes
confirms that the magazine at issue are neither firearms, nor ammunition for
purposes of § 924.

Thus, the Government fares no better under 8 U.S.C.

§ 1101(a)(43)(E)(ii) than it did under § 1101(a)(43)(C).

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C
Having determined that the district court committed an error that was
clear or obvious, and that the Government has not successfully raised an
alternative basis for affirmance, we now turn to the remaining prongs of plain
error review: the impact on Guillen-Cruz’s substantial rights and our own
discretion. See Escalante-Reyes, 689 F.3d at 419. Where a defendant shows “a
reasonable probability of a different outcome absent the error,” he has
established that the error affected his substantial rights. Molina-Martinez v.
United States, 136 S. Ct. 1338, 1346 (2016); see Puckett, 556 U.S. at 135.
Absent the erroneous enhancement, Guillen-Cruz’s advisory range would have
been reduced from between 18 and 24 months to between 10 and 16 months of
imprisonment.

As the Government concedes, because the district court

imposed a within-Guidelines sentence, there is a reasonable probability that
but for the error, the district court would have imposed a shorter sentence.
Thus, Guillen-Cruz has shown that the error affected his substantial rights.
A court should correct a plain, forfeited error affecting substantial rights
only where “the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736
(1993) (citation, alteration, and internal quotation marks omitted).

In

evaluating this aspect of plain error review, we “consider the particular facts
and degree of error in this case, and compare those factors to other cases that
have turned on the fourth prong.” United States v. Martinez-Rodriguez, 821
F.3d 659, 664 (5th Cir. 2016). Guillen-Cruz argues that the error was sufficient
to significantly affect his substantial rights, and therefore the error
compromised the fairness of the proceedings. The Government argues in its
briefing that the court should not exercise its discretion to reverse the error
because the degree of error was insignificant, Guillen-Cruz’s prior conviction
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under 22 U.S.C. § 2778 was the equivalent of a conviction under 18 U.S.C.
§ 924(b), and Guillen-Cruz has a substantial criminal history.
The Government made additional contentions concerning our discretion
after the conclusion of briefing. In a motion to supplement the record, the
Government averred that Guillen Cruz had submitted a letter to the
sentencing court in his prior 22 U.S.C. § 2778 case, in which he accepted
responsibility for his actions, including possessing rifles and ammunitions with
the intent to export these items to Mexico. The Government contends that
because Guillen-Cruz has admitted in a prior action that he committed an
aggravated felony, we need not vacate his sentence. The Government raised
two additional issues at oral argument, contending (1) that due to a recent
Guidelines amendment, had he been convicted of illegal reentry today, GuillenCruz’s prior offense would qualify as an aggravated felony under the new
definition of that phrase, and (2) that an arrest listed in Guillen-Cruz’s
criminal history has since ripened into a theft conviction—an aggravated
felony—rendering irrelevant the collateral immigration consequences of the
erroneous enhancement. The Government argues that these factors decrease
the injustice of letting the erroneous enhancement stand.
As previously discussed, in the absence of the enhancement, GuillenCruz’s advisory sentencing range would have been reduced from between 18
and 24 months to between 10 and 16 months of imprisonment. The degree of
error in a given case certainly affects whether the fairness, integrity, or public
reputation of judicial proceedings has been compromised.

See Martinez-

Rodriguez, 821 F.3d at 664–67; United States v. John, 597 F.3d 263, 288 (5th
Cir. 2010). Despite the Government’s argument that an 8-month difference is
a “small degree of error,” this court has held in both published and unpublished
opinions that sentencing errors of a similar magnitude seriously affected the
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fairness, integrity, and public reputation of sentencing proceedings and
warranted reversal. See United States v. Santacruz-Hernandez, 648 F. App’x
456, 458 (5th Cir. 2016) (finding reversible plain error where error resulted in
sentencing range increase from between 4 and 10 months to between 6 and 12
months and defendant received 12-month sentence); United States v.
Mudekunye, 646 F.3d 281, 289–91 (5th Cir. 2011) (finding reversible plain
error where error resulted in sentencing range increase from between 63 and
78 months to between 78 and 97 months and defendant received 97-month
sentence); John, 597 F.3d at 285–86 (finding reversible plain error where error
resulted in sentencing range increase from between 70 and 87 months to
between 97 and 121 months and defendant received a 108-month sentence);
United States v. Carrizales-Jaramillo, 303 F. App’x 215, 217 (5th Cir. 2008)
(finding reversible plain error where error resulted in sentencing range
increase from between 24 and 30 months to between 30 and 37 months and
defendant received 31-month sentence). We find that the disparity caused by
the error in this case weighs in favor of vacatur.
We have already established that Guillen-Cruz’s 22 U.S.C. § 2778
conviction is not an aggravated felony as defined in § 1101(a)(43)(E)(ii). The
Government does not cite authority for its contention that a 22 U.S.C. § 2778
conviction is “just as egregious” as an 18 U.S.C. § 924(b) conviction. Thus, this
factor does not weigh against exercising our discretion to vacate the sentence
in this case.
The Government argues that Guillen-Cruz’s significant criminal history
“militates against satisfaction of the fourth prong,” specifically pointing to
Guillen-Cruz’s multiple prior arrests and the 22 U.S.C. § 2778 conviction.
Guillen-Cruz’s PSR indicates that in the four years preceding his present
offense he was arrested for: transporting six undocumented aliens (formal
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charges were not filed); attempting to smuggle five 5.56 caliber magazines into
the United States (formal charges were not filed); unauthorized use of a motor
vehicle (the case was dismissed in the interest of justice); burglary of a
habitation (the complaint was dismissed); and public intoxication (no charges
were filed). At the time the PSR was written, Guillen-Cruz also had a pending
charge for theft by appropriation, which the Government informs us has since
ripened into a conviction. None of these events contributed to Guillen-Cruz’s
criminal history score, which, according to the PSR, meant that the criminal
history category substantially under-represented the seriousness of GuillenCruz’s criminal history or the likelihood that he will commit other crimes.
However, the district court declined to depart upward on the basis of this
information.
We do not believe that the defendant’s criminal history supports a basis
for affirming the erroneous sentence.

Martinez-Rodriguez, cited by the

Government, held that despite the defendant’s criminal history, the court
would “not ignore the disparity in the sentences that [the defendant]
identifie[d] on appeal.” 821 F.3d at 666–67. While the absolute disparity in
that case was greater than it is here, we find that Guillen-Cruz’s criminal
history, which largely consists of arrests for which the underlying conduct was
never charged or the charges were eventually dismissed does not trump the
significant sentencing disparity caused by the district court’s plain error.
The Government failed to raise its argument that Guillen-Cruz
previously admitted responsibility for conduct that could have supported an
aggravated felony enhancement in its brief. Parties are required to brief their
contentions to preserve them. FED. R. APP. P. 28; see Hernandez v. Garcia
Pena, 820 F.3d 782, 786 n.3 (5th Cir. 2016). Whether we will consider an
unpreserved argument is a matter of discretion. See United States v. Miranda,
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248 F.3d 434, 443 (5th Cir. 2001). Although we construe this rule “more
leniently when the party who fails to brief an issue is the appellee,” Garcia
Pena, 820 F.3d at 786 n.3 (citation omitted), the facts supporting the
Government’s argument are noted in the PSR and were readily available prior
to briefing. As we see no “substantial public interests” implicated by the
resolution of this issue, see Miranda, 248 F.3d at 444, we find that the
Government has forfeited it.
Similarly, with respect to the Government’s remaining arguments, even
if they had merit, “we generally do not consider contentions raised for the first
time at oral argument,” Martinez v. Mukasey, 519 F.3d 532, 545–46 (5th Cir.
2008), and decline to do so here. As evidenced by the attachment to the
Government’s Rule 28j letter—which was filed after oral argument—GuillenCruz’s theft conviction was finalized in January 2016, well before the
Government submitted its brief on appeal.

Similarly, the Guidelines

amendment cited was available to the Government in advance of oral
argument, at the very least by its November 1, 2016, effective date, see U.S.
SENTENCING GUIDELINES MANUAL app. C, amend. 802 (U.S. SENTENCING
COMM’N 2016), and should properly have been brought to the court’s attention
via a Rule 28j letter in advance of oral argument. The Government has given
us no reason to depart from our usual practice.
***
For these reasons, we VACATE Guillen-Cruz’s sentence and REMAND
for resentencing.

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