USA v. Gustavo Casasola

Filing

FILED OPINION (MARY M. SCHROEDER, RONALD M. GOULD and MICHAEL PATRICK MCCUSKEY) AFFIRMED. Judge: MMS Authoring, FILED AND ENTERED JUDGMENT. [8048965]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GUSTAVO ADOLFO SUCHITE
CASASOLA, AKA Casasola Suchite,
AKA Gustavo Suchite, AKA
Gustavo Adolfo Suchite,
Defendant-Appellant.




No. 10-50376
D.C. No.
2:09-cr-00902RGK-1
OPINION



Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
September 2, 2011—Pasadena, California
Filed January 30, 2012
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Michael Patrick McCuskey,
Chief District Judge.*
Opinion by Judge Schroeder

*The Honorable Michael Patrick McCuskey, Chief United States District Judge for the District of Central Illinois, sitting by designation.

869

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UNITED STATES v. CASASOLA

COUNSEL
David M. Herzog, Assistant United States Attorney, Los
Angeles, California, for plaintiff-appellee United States of
America.
Davina T. Chen, Department of Federal Public Defenders,
Los Angeles, California, for defendant-appellant Gustavo
Adolfo Suchite Casasola, etc.

OPINION
SCHROEDER, Circuit Judge:
I.

INTRODUCTION

Gustavo Adolfo Suchite Casasola (“Suchite”), a Guatemalan citizen, appeals his conviction and sentence for illegal re-

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entry into the United States after removal, in violation of 8
U.S.C. § 1326. Suchite challenges the validity of his underlying removal, contending that he is a U.S. citizen. Suchite
argues that he automatically derived U.S. citizenship upon his
father’s naturalization in 1997, when Suchite was fourteen. At
that time, the controlling statute granted automatic derivative
citizenship to foreign-born children of married parents only
when both parents naturalized before the foreign-born child’s
eighteenth birthday. Suchite’s mother, married to Suchite’s
father at all relevant times, did not naturalize until Suchite
was twenty-one. The district court, therefore, correctly ruled
Suchite was not a citizen. Our law in 1997 drew a distinction
between foreign-born children whose parents were legally
separated, and those, like Suchite, whose parents were married. See 8 U.S.C. § 1432(a). Had Suchite’s parents been
legally separated, or had the law now in effect been in effect
before Suchite turned eighteen, then he would have automatically derived citizenship upon his father’s naturalization.
Suchite’s principal argument on appeal is that the former statutory distinction between married and legally separated parents is irrational and hence a denial of equal protection. The
government counters that the distinction has a rational basis
in protecting the parental rights of a non-citizen, custodial
parent. We have already recognized this to be a rational basis
in Barthelemy v. Ashcroft, 329 F.3d 1062, 1066 (9th Cir.
2003). We accordingly enforce the statute as it is written and
affirm the conviction because Suchite did not obtain derivative citizenship when his father alone was naturalized before
Suchite turned eighteen.
Suchite further contends that the statute also denies equal
protection in permitting automatic derivative citizenship when
one parent having joint custody is naturalized, but not when
one married parent is naturalized. We agree that result would
be irrational, but follow the Fifth Circuit in holding the statute
does not permit it. See Bustamante-Barrera v. Gonzales, 447
F.3d 388 (5th Cir. 2006). In order to confer automatic deriva-

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tive citizenship in 1997, the custodial parent, upon naturalization, was required to have sole legal custody.
We also affirm the sentence. The Guideline amendment
upon which Suchite relies is not retroactive. See United States
v. Urena, 659 F.3d 903 (9th Cir. 2011).
II.
A.

FACTUAL AND STATUTORY BACKGROUND
Factual Background

Suchite was born in Guatemala on February 2, 1983 to
Guatemalan parents. His parents were then and still are married. Suchite’s father immigrated to the United States two
years after Suchite’s birth, and Suchite’s mother followed one
year later. Both of his parents found employment in the
United States and were able to send money home to their children.
On July 17, 1995, when Suchite was twelve years old, he
and his siblings were lawfully admitted into the United States
on immigrant visas. On December 11, 1997, when Suchite
was fourteen, his father became a naturalized U.S. citizen.
Suchite turned eighteen on February 2, 2001. At that time,
Suchite’s mother was not yet a U.S. citizen.
In February 2003, a California court convicted Suchite of
possessing methamphetamine for sale, in violation of California Health & Safety Code section 11378, and sentenced him
to 36 months of probation and 180 days in county jail. While
on probation in 2004, Suchite was convicted of receiving
stolen property and sentenced to a two-year jail term. His probation for the 2003 methamphetamine conviction was
revoked, and he was sentenced to two years in county jail, to
be served concurrently with the sentence in his 2004 conviction. Because of his criminal activity, Suchite was removed
from the United States on February 23, 2005 after his release

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from custody. He soon returned to the United States and was
removed again on May 18, 2005.
The events leading up to the present case occurred on July
25, 2009, when police arrested Suchite in California for using
a controlled substance in violation of California Health &
Safety Code section 1150(a). Suchite was transferred to the
administrative custody of the U.S. Immigration and Customs
Enforcement, and then prosecuted under § 1326, as an illegal
alien found in the United States following removal.
Suchite filed a motion to dismiss the criminal information.
He argued that § 1432(a), the statute which governed derivative citizenship before he turned eighteen, denied him his
equal protection rights by discriminating against children of
married parents. He argued that there was no rational basis for
granting derivative citizenship to the foreign-born child of
legally separated parents upon the naturalization of only one
parent, but denying derivative citizenship to the foreign-born
child of married parents in the same circumstances.
The district court denied Suchite’s motion to dismiss, finding that there was a rational basis for Congress’s decision to
tie derivative citizenship to the naturalization of both parents
if married and to the naturalization of the custodial parent if
legally separated. Following the district court’s denial,
Suchite entered a conditional guilty plea, preserving his right
to appeal the denial of his motion to dismiss.
At the sentencing hearing, the district court placed Suchite
in criminal history category IV, with a sentencing guideline
range of 57-71 months. The district court imposed a 57-month
sentence. Suchite would have been in category III, with a sentencing guideline range of 46-57 months, but for the inclusion
of two “recency” criminal history points under U.S.S.G.
§ 4A1.1(e). While his case was on direct appeal, the Sentencing Commission amended the Guidelines, deleting the “recency” points provision. U.S.S.G. Supp. Appx. C., Amend. 742

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(effective Nov. 1, 2010) (“Amendment 742”). Suchite now
asks us to remand to the district court for resentencing in light
of Amendment 742.
B.

Statutory Background

To answer the principal equal protection argument raised
by Suchite in challenging his conviction, it is necessary to
understand both the statutory scheme that governed automatic
derivative citizenship before Suchite turned eighteen, and the
statutory scheme that went into effect twenty-five days after
Suchite’s eighteenth birthday.
The law that controls this case was the law in effect before
Suchite turned eighteen. See Romero-Mendoza v. Holder, ___
F.3d ___, No. 08-74674, 2011 WL 6318336, at *2 (9th Cir.
Dec. 19, 2011) (quoting Minasyan v. Gonzales, 401 F.3d
1069, 1075 (9th Cir. 2005)). We accordingly look to the
Immigration and Nationality Act (“INA”) section 321(a), codified at 8 U.S.C. § 1432(a), which was the governing law at
that time. Section 1432 listed the specific conditions necessary for derivative citizenship. It provided in pertinent part:
(a) A child born outside of the United States of alien
parents . . . becomes a citizen of the United States
upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having
legal custody of the child when there has
been a legal separation of the parents or
the naturalization of the mother if the child
was born out of wedlock and the paternity

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of the child has not been established by
legitimation; and if
(4) Such naturalization takes place while
such child is under the age of eighteen
years; and
(5) Such child is residing in the United
States pursuant to a lawful admission for
permanent residence at the time of the naturalization of the parent last naturalized
under clause (1) of this subsection, or the
parent naturalized under clause (2) or (3) of
this subsection, or thereafter begins to
reside permanently in the United States
while under the age of eighteen years.
§ 1432(a) (emphasis added).
[1] We have recognized that when Congress passed
§ 1432(a), Congress “generally intended to provide automatic
citizenship to children born abroad of alien parents only after
the naturalization of both biological parents.” Barthelemy,
329 F.3d at 1066. We identified the reason: Congress wanted
to “prevent[ ] the naturalizing parent from usurping the parental rights of the alien parent.” Id. To avoid having the general
rule sweep too broadly, by encompassing situations in which
there was no non-citizen parent with parental rights to protect,
Congress allowed a foreign-born child to derive citizenship
upon the naturalization of a single parent in the limited circumstance where the non-citizen parent was (1) deceased, (2)
the non-custodial parent following a legal separation, or (3) an
unknown father. § 1432(a)(2)-(3). Id.
In this case, Suchite does not satisfy § 1432(a)’s requirement that both his biological parents naturalize before his
eighteenth birthday. The statutory exceptions do not apply
because Suchite’s non-citizen mother was alive, married to,

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and not legally separated from, Suchite’s naturalized-citizen
father at all times before Suchite turned eighteen.
[2] The law changed less than a month after Suchite’s
eighteenth birthday. Suchite would have derived citizenship if
he had turned eighteen after February 27, 2001, the effective
date of the Child Citizenship Act (“CCA”). See 8 U.S.C.
§ 1431. The CCA repealed § 1432(a) and broadened the qualifications for derivative citizenship, allowing foreign-born
children under the age of eighteen to derive U.S. citizenship
automatically upon the naturalization of only one parent. See
id. § 1431(a)(1).
The CCA now provides:
(a) A child born outside the United States automatically becomes a citizen of the United States when all
of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by birth
or naturalization.
(2) The child is under the age of eighteen
years.
(3) The child is residing in the United
States in the legal and physical custody of
the citizen parent pursuant to a lawful
admission for permanent residence.
Id. § 1431(a) (emphasis added).
The CCA demonstrates a material departure from the
INA’s former rule that both parents must naturalize to confer
automatic derivative citizenship on a child. Id. Under the new
law, if a foreign-born child is in the legal and physical custody of a parent who becomes a citizen, the foreign-born child

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derives citizenship upon the naturalization of that parent. Id.
This is now true even if the non-citizen parent retains parental
rights. See 8 C.F.R. § 320.1(2).
The legislative history of the CCA indicates Congress
wanted to simplify the naturalization process in order to help
families. The House Report stated the Act would “benefit
families with foreign-born children while untangling the complex and duplicative provisions of the [INA].” H.R. Rep. 106852, at 4 (2000) (internal quotation marks and citation omitted). Of particular concern to legislators were the hurdles to
citizenship faced by foreign-born, adopted children. See
Adopted Orphans Citizenship Act and Anti-Atrocity Alien Act:
Hearing on H.R. 2883 and H.R. 3058 Before the Subcomm.
on Immigr. and Claims of the H. Comm. on the Judiciary,
106th Cong. 1-2 (2000) (opening statement of Lamar Smith,
Chairman, H. Subcomm. on Immigr. and Claims) (hereinafter
“Hearing”); see also H.R. Rep. No. 106-852, at 4. As a general matter, Congress wanted to ensure that foreign-born children were not deprived of U.S. citizenship simply because
their parents did not know they needed to take additional steps
to naturalize their children. H.R. Rep. No. 106-852, at *4; see
also Hearing, at 2.
[3] This concern may be particularly apt in this case, where
Suchite contends that his parents believed that his father’s
naturalization automatically conferred citizenship upon his
children. Suchite’s situation is sympathetic, and Congress
subsequently acted to prevent its recurrence. The INA, however, and not the CCA, governs his claim of citizenship.
Because the INA was based on a general policy that protected
the parental rights of the custodial, non-citizen parent, in this
case Suchite’s mother, he cannot derive citizenship under
§ 1432(a) of the INA since only one of his custodial parents
naturalized within the relevant time period.
We therefore turn to Suchite’s contention that the statute is
unconstitutional. Suchite challenges the provision on equal

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protection grounds. He argues that § 1432(a) irrationally
grants citizenship to children of legally separated parents
upon the naturalization of only one parent with custodial
rights, while denying citizenship to children of married parents in similar circumstances. The controlling equal protection
issue is whether § 1432(a)’s distinction between foreign-born
children of married parents and those of legally separated parents is rationally based.
III.
A.

ANALYSIS
Equal Protection

We decided a similar issue in Barthelemy, 329 F.3d at
1065. The petitioner in Barthelemy was born in Haiti to
unmarried parents, neither of whom were U.S. citizens. Id. at
1063-64. Barthelemy never knew his mother because he was
left in the care of his father and paternal grandparents soon
after his birth. Id. at 1064. Barthelemy’s father eventually
immigrated to the United States and Barthelemy followed. Id.
Barthelemy’s father naturalized when Barthelemy was fourteen. Id. The same statutory scheme that controls here, controlled in Barthelemy. Id. at 1064 & n.l. Barthelemy, like
Suchite, could not derive citizenship from his father because
his father was not legally separated from his mother. Id. at
1064-65. He argued that § 1432(a) was unconstitutional
because its legal separation requirement irrationally discriminated against foreign-born children whose parents were never
married. Id. at 1065.
[4] We rejected this argument. Id. We held that the legal
separation requirement was rational because it was consistent
with § 1432(a)’s general statutory scheme to protect parental
rights, including those of non-citizen parents. Id. at 1066; see
also Nehme v. INS, 252 F.3d 415, 425 (5th Cir. 2001) (reasoning that Congress enacted the provision “to promote marital
and family harmony and to prevent the child from being separated from an alien parent who has a legal right to custody”);

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Johnson v. Whitehead, 647 F.3d 120, 126 (4th Cir. 2011)
(finding that Congress took great “pains to protect the rights
of both parents”); Wedderburn v. INS, 215 F.3d 795, 800 (7th
Cir. 2000) (reasoning that parents “may have reasons to prefer
the child’s original citizenship”); Rodrigues v. Attorney General, 321 Fed. Appx. 166, 169 (3d Cir. Apr. 14, 2009) (unpublished) (reasoning that the statute’s purpose “was quite clear:
it was structured to respect the rights of custodial parents who
were not citizens of the United States”). We explained with
a hypothetical situation in which an unmarried, but naturalized parent, unlawfully kidnaped the child from the noncitizen parent. Barthelemy, 329 F.3d at 1066. In this scenario,
the requirement that the naturalized parent be the custodial,
legally separated parent to confer derivative citizenship demonstrates a rational purpose. The requirement protects the
rights of the non-citizen parent by preventing the naturalized
parent from affecting the child’s citizenship in violation of the
interests of the non-citizen parent from whom the child was
kidnaped. Id. at 1066-67.
[5] Although Barthelemy involved the protection of the
parental rights of an unmarried parent, the principle of protecting parental rights is similarly served in the context of a
marital relationship. Married couples do not always agree on
how to raise their children, and not unfrequently live separately from each other, even though not legally separated or
divorced. In this case, for instance, although neither divorced
nor separated, Suchite’s parents spent a year apart, with
Suchite’s father in the United States and his mother in Guatemala. If, hypothetically, Suchite’s mother had stayed in Guatemala while Suchite was with his father in the United States
when his father naturalized, there would be concerns about
the rights of Suchite’s non-citizen mother. The requirement
that there be a legal separation to confer automatic derivative
citizenship upon the father’s naturalization could then more
clearly be seen to protect the parental rights of Suchite’s
mother. With the benefit of hindsight, the requirement does
not appear to serve the purpose of protecting the rights of the

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non-citizen parent in this case, where the mother herself
became a citizen not long after the father, but that does not
make the statute irrational, only imperfect. See Barthelemy,
329 F.3d at 1067; see also Wedderburn, 215 F.3d at 800 (reasoning that “[a] law does not become unconstitutional just
because it does not fit 100% of the cases”).
Suchite makes a secondary equal protection argument. He
contends we should interpret the phrase “legal custody”
within the meaning of § 1432(a) to include a parent having
joint legal custody, and then hold the statute is irrational by
treating a citizen parent with joint legal custody differently
from a parent who is married. If we were to construe the statute to grant derivative citizenship upon the naturalization of
a parent with joint legal custody, we agree the result would be
irrational. Our law, however, recognizes the principle that
courts do not construe statutes in a manner that would lead to
absurd results. Ma v. Ashcroft, 361 F.3d 553, 561 (9th Cir.
2004). Similarly, we do not impute to Congress an intent to
create a law that produces an unreasonable result. United
States v. Kaldenberg, 429 F.2d 161, 164 (9th Cir. 1970). The
phrase “legal custody,” therefore, means sole legal custody.
Suchite relies on a series of unpublished, non-precedential,
BIA decisions in which the BIA said that derivative citizenship follows the naturalization of one parent with joint legal
custody. See In re Puertas, No. A036-324-203, 2010 WL
4500862 (BIA Oct. 28, 2010) (unpublished); In re Delcid, No.
A35-235-281, 2005 WL 1766776 (BIA May 3, 2005) (unpublished); see also In re Applicant, No. [redacted by agency],
2007 WL 5315191 (AAO Feb. 2, 2007). Only Skidmore deference, however, is owed to unpublished BIA decisions. See
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir.
2006). Under Skidmore deference, we “examine the validity
of the BIA’s reasoning, its thoroughness, and overall persuasiveness,” and give it weight accordingly. Id. at 1015.
[6] We must conclude that the non-precedential, BIA statutory interpretations are not worthy of any deference, because

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they conflict with the words and obvious meaning of the statute. See Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.
2004) (refusing to grant any deference when the agency decision was “contrary to the plain and sensible meaning of the
statute” and would lead to an irrational result). Indeed, the
only authority cited by the BIA from the time § 1432(a) was
in effect is an unpublished 1996 Passport Bulletin issued by
the State Department, an agency that does not enforce these
immigration laws. The BIA’s additional reliance on regulations later adopted by the Department of Homeland Security
to implement the CCA is unpersuasive, because the CCA
superseded the controlling statute in this case. Rather than follow unpublished, BIA decisions unworthy of deference, we
instead give the statute a sensible interpretation and thereby
agree with the only circuit decision that has addressed this
issue, the Fifth Circuit’s decision in Bustamante-Barrera, 447
F.3d at 395-96.
[7] In Bustamante-Barrera, the petitioner appealed his
order of removal, arguing that he obtained automatic derivative citizenship when his mother naturalized while he was still
a minor. Id. at 390-92. At the time his mother naturalized his
parents were divorced, and although he lived exclusively with
his mother, his parents had joint legal custody and his father
retained visitation rights. Id. at 390-91. The Fifth Circuit
expressly observed that construing the statute as satisfied by
joint legal custody, what Suchite advocates here, would lead
to the irrational and absurd.
[I]nterpreting § 1432(a)(3) as amenable to being satisfied by a decree of joint legal custody would lead
to an absurd result: (1) not recognizing derivative
citizenship when an alien child’s parents are married
and only one parent is naturalized, while (2) recognizing derivative citizenship when an alien child’s
parents are legally separated, continue to share legal
custody (and thus legal rights) over the child, and
only one parent is naturalized. Inasmuch as, in each

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example, both parents share rights over the child, we
can conceive of no non-absurd reason—and Petitioner has furnished us none—why Congress would
grant derivative citizenship to the child of the legally
separated parents but not to the child of the married
parents.
Id. at 398. The Fifth Circuit therefore held that “only sole
legal custody” satisfied § 1432(a)’s requirement that the naturalizing parent have “legal custody.” Id. at 396. We agree.
Supporting the Fifth Circuit’s decision were: (1) the statute’s
plain language within the overall statutory scheme of the
INA; and (2) the statute’s purpose of protecting parental
rights. Id. at 396-98. We too find these compelling.
If Congress had intended the naturalization of one legally
separated parent sharing joint legal custody to trigger
§ 1432(a)’s grant of derivative citizenship, then Congress
could have easily provided that “the parent or parents having
legal custody of the child” could confer derivative citizenship
upon naturalization. Id. at 396 (internal quotation marks omitted). Congress has, in fact, used such language in other provisions of the INA. See id. at 396-97. In 8 U.S.C.
§ 1101(b)(1)(C) (emphasis added), Congress defines “child”
as “a child legitimated under the law of the child’s residence
or domicile . . . if such legitimation takes place before the
child reaches the age of eighteen years and the child is in the
legal custody of the legitimating parent or parents at the time
of such legitimation.” See also id. § 1101(b)(1)(E)(I) (defining “child” to include an adopted child “if the child has been
in the legal custody of, and resided with, the adopting parent
or parents” (emphasis added)); id. § 1101(c)(1) (similarly
requiring that the child be “in the legal custody of the legitimating or adopting parent or parents” (emphasis added)). As
the Fifth Circuit summarized, “we are confident that, had
Congress intended § 1432(a)(3) to be satisfied by either sole
or joint legal custody, it would have used the same words or

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at least very similar ones.” Bustamante-Barrera, 447 F.3d at
397.
Furthermore, if § 1432(a) were interpreted to allow the naturalization of one parent with joint legal custody to confer
automatic derivative citizenship on a child, the statute would
not serve the purpose of protecting the custodial, non-citizen
parent. See id. 397-98. Thus, in addition to the Fifth Circuit,
a number of other circuit courts have assumed, if not explicitly decided, that “legal custody” is limited to “sole legal custody.” See Johnson, 647 F.3d at 126 (explaining that
automatic derivative citizenship applies when “one parent is
awarded sole custody of the child” (emphasis added)); Wedderburn, 215 F.3d at 800 (postulating that § 1432(a) “as written means that in shared-custody cases both parents must
naturalize, and this is entirely rational”); Rodrigues, 321 Fed.
Appx. at 170 (concluding that there was no derivative citizenship because the parent’s informal separation resulted in joint
custodial rights); see also Perez v. United States, 502 F. Supp.
2d 301, 303 n.5 (N.D.N.Y. 2006) (summarily concluding that
the statute requires sole legal custody); Fisher v. Mukasey,
No. 08-CV-812, 2008 WL 4693135, at *7 (E.D.N.Y. Oct. 22,
2008) (unpublished) (citing Bustamante-Barrera for the proposition that “legal custody” is limited to sole legal custody);
Mohammed v. United States, No. 07-22306-CIV, 2007 WL
4557145, at *7 (S.D. Fla. Dec. 21, 2007) (unpublished)
(adopting Bustamante-Barrera’s holding that “legal custody”
is limited to sole legal custody).
Finally, and as a last resort, Suchite points to a different
provision of the statute, 8 U.S.C. § 1433, that permits only
one naturalized parent to petition for citizenship of a minor
child. He argues that if § 1432(a) is intended to protect the
non-citizen parent by making the naturalization of only one
married parent insufficient to confer automatic derivative citizenship, then the INA’s entire statutory scheme is irrational
and inconsistent because under § 1433, one parent may peti-

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tion for the child’s citizenship and the other parent is not even
given an opportunity to object.
The problem with this contention is that the two sections
deal with different ways that foreign-born children may derive
citizenship from their parents. Section 1433 allows one parent
who has made a conscious decision to naturalize a child to file
a petition to achieve that end. Section 1432(a), on the other
hand, deals with derivative citizenship that flows automatically when its requirements are met, without the need for any
conscious decision or petition. The two provisions are thus
consistent: because citizenship does not flow automatically
from the naturalization of only one parent, the naturalized parent must ask for a child’s citizenship. See Wedderburn, 215
F.3d at 800 (reasoning that § 1433 is the complement to
§ 1432(a) because it permits the naturalized, “custodial parent
to obtain U.S. citizenship for his or her child as a matter of
right, by filing an application”); To Revise and Codify the
Nationality Laws of the United States: Hearing on H.R. 6127
Before the H. Comm. on Immigr. and Naturalization, 76th
Cong. 445 (1940) (stating that § 1433 permits a citizen parent
to petition to naturalize his or her child if that “citizen parent
is favorable to [his or her child’s] acquisition of such status”).
The statute does not grant a non-citizen parent any right to
object, for the INA is no longer concerned with the interests
of the non-citizen parent once the citizen parent makes a conscious decision to apply for the child’s citizenship and meets
§ 1433’s other rigorous requirements of legal residence.
B.

Sentencing Amendment

Suchite also requests that we use our discretionary powers
and remand for further sentencing proceedings in light of
Amendment 742 to the Sentencing Guidelines, which deleted
the criminal history “recency” points used to calculate
Suchite’s criminal history category.
The former Sentencing Guidelines, under which Suchite
was sentenced, provided in pertinent part: “Add 2 points [to

Case: 10-50376

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ID: 8048965

DktEntry: 30-1

UNITED STATES v. CASASOLA

Page: 17 of 18

887

calculate the criminal history category] if the defendant committed the instant offense less than two years after release
from imprisonment on a sentence counted under (a) or (b) or
while in imprisonment or escape status on such a sentence.”
U.S.S.G. § 4A1.1(e) (Historical Notes, 2010 Amendment
742). Because Suchite violated § 1326 by illegally reentering
the United States after removal, within two years of being discharged from parole, the district court properly added two
points under then-applicable § 4A1.1(e).
[8] Amendment 742, which deleted the recency points provision, went into effect on November 1, 2010, three months
after Suchite was sentenced and while he was pursuing this
appeal. U.S.S.G. Supp. Appx. C., Amend. 742. The Sentencing Commission enacted the Amendment because it determined that the recency of the offense did not necessarily
reflect an increased risk of recidivism or increased culpability.
Id. The Commission did not give Amendment 742 retroactive
effect. See U.S. Sentn’g Comm’n Public Meeting Minutes
(Sept. 16, 2010) (explicitly choosing not to make the Amendment retroactive); see also United States v. Diaz-Cardenas,
351 F.3d 404, 409 (9th Cir. 2003) (holding that substantive
amendments to the Guidelines have “no retroactive effect
unless specifically referenced in U.S.S.G. § 1B1.10”);
U.S.S.G. § 1B1.10 (no reference to Amendment 742).
Under Amendment 742, Suchite’s criminal history category
would have been III rather than IV, and his sentencing guideline range would have been 46-57 months instead of 57-71
months. Suchite relies on two First Circuit decisions to support his remand request: United States v. Godin, 522 F.3d
133, 135-36 (1st Cir. 2008) (per curiam) (remanding sentence
to give the district court a chance to reconsider the sentence
and decide “whether the original or some different sentence
should be imposed and to determine what additional proceedings, if any, the judge might find helpful”); and United States
v. Ahrendt, 560 F.3d 69, 79-80 (1st Cir. 2009) (same).

Case: 10-50376

01/30/2012

888

ID: 8048965

DktEntry: 30-1

Page: 18 of 18

UNITED STATES v. CASASOLA

[9] We recently declined to follow the First Circuit in a
similar case, however. See Urena, 659 F.3d at 910 (declining
to adopt the approach in Godin where the sentence was substantively reasonable and procedurally correct). Like Urena,
the sentence in this case is neither substantively nor procedurally unreasonable, and Suchite does not contend it is. Our
decision in Urena requires us to affirm Suchite’s sentence.
AFFIRMED.