United States v. Alejandro Rios-Cortes
649 F.3d 332
5th Cir.2011Background
- Rios-Cortes appeals his sentence for illegal reentry after deportation.
- Prior theft conviction sentenced to two years, later probated for five years; probation subsequently revoked.
- District court reduced the probated term to 180 days rather than reinstating the original two-year term.
- Rios-Cortes argues the theft conviction is not an aggravated felony because his sentence ended up under one year.
- The Government argues the term of imprisonment for § 1101(a)(43)(G) includes suspended portions; the district court approved the enhancement.
- This court applies de novo review to whether a prior conviction qualifies for the guidelines enhancement and follows Retta-Hernandez, Arriola-Cardona, and Sanchez.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the prior theft conviction qualify as an aggravated felony for § 2L1.2(b)(1)(C) despite probationary reduction? | Rios-Cortes contends the sentence is under one year and thus not an aggravated felony. | The Government contends the term of imprisonment includes suspended portions; qualifies under the statute. | Yes; district court properly applied the enhancement. |
| Is 'term of imprisonment' under § 1101(a)(43)(G) the period ordered by the court regardless of suspensions and probation? | N/A (Rios-Cortes disputes applicability based on shorter term). | A term can include suspended portions and probation is considered for the enhancement. | Term includes suspended portions; probation does not defeat the enhancement. |
| Do Retta-Hernandez, Arriola-Cardona, and Sanchez govern this case to preserve the enhancement? | Rios-Cortes distinguishes those decisions but fails to avoid the ruling. | These decisions control and support applying the enhancement. | Yes; the court continues to follow those precedents. |
| Does Bustillos-Pena control here to limit the analysis to the 'sentence imposed' rather than 'term of imprisonment'? | Bustillos-Pena is cited to limit analysis to a different provision (A) and not applicable here. | Bustillos-Pena does not control § 2L1.2(b)(1)(C) because it concerns a different statutory provision. | Bustillos-Pena is not controlling for this provision. |
Key Cases Cited
- United States v. Landeros-Arreola, 260 F.3d 407 (5th Cir. 2001) (de novo review of guideline application to prior convictions)
- United States v. Vasquez-Balandran, 76 F.3d 648 (5th Cir. 1996) (definition of 'term of imprisonment' and suspension)
- United States v. Yanez-Huerta, 207 F.3d 746 (5th Cir. 1996) (suspension for probation considered in enhancement)
- United States v. Retta-Hernandez, 106 F. App’x 879 (5th Cir. 2004) (distinguishes Landeros-Arreola in probation scenarios)
- United States v. Arriola-Cardona, 184 F. App’x 373 (5th Cir. 2006) (continued alignment with Retta-Hernandez framework)
- United States v. Sanchez, 419 F. App’x 504 (5th Cir. 2011) (affirmed Retta-Hernandez/Arriola-Cardona approach)
- United States v. Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010) (distinguished from the 'term of imprisonment' analysis for § 2L1.2(b)(1)(A))