United States v. Carlos Lobo
694 F. App'x 310
| 5th Cir. | 2017Background
- Defendant Carlos Lobo convicted under 8 U.S.C. § 1326 for illegal reentry and sentenced to 40 months (below Guidelines range).
- Lobo argued the district court should have applied pending (not yet effective) 2016 Guidelines that would have lowered his advisory range.
- Lobo also challenged a 16-level enhancement under former U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a prior California conviction for assault with intent to commit rape (Cal. Penal Code § 220(a)).
- The district court calculated the sentence under the then-effective Guidelines and considered individualized factors (criminal history, repeated reentries, long U.S. residence, assimilation) when declining to vary.
- The court applied the § 2L1.2 enhancement because the prior § 220(a) conviction was treated as a “crime of violence” and as a felony punishable by a term exceeding one year.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by refusing to apply pending 2016 Guidelines | The court followed a fixed policy refusing pending amendments and should have applied 2016 Guidelines that would lower the range | The court properly used the then-effective Guidelines and retained discretion to vary; it made an individualized assessment | No reversible error — Lobo cannot show prejudice under plain-error review; court conducted individualized assessment and record shows no likelihood of a variance |
| Whether a California § 220(a) conviction qualifies as a “crime of violence” under former U.S.S.G. § 2L1.2(b)(1)(A)(ii) | Lobo: § 220(a) is not a COV | Government: § 220(a) qualifies as a COV | Affirmed — precedent holds § 220(a) is a COV |
| Whether the § 220(a) conviction counts as a “felony” for the enhancement when most of the sentence was suspended | Lobo: suspended sentence/probation means it is not punishment exceeding one year | Government: § 220(a) exposes defendant to at least two years’ imprisonment and thus is punishable by >1 year | Affirmed — conviction is a felony for purposes of the enhancement |
| Whether the suspended portion rule for "sentence imposed" negates the enhancement | Lobo: statutory definition of “sentence imposed” excludes suspended portions, reducing punishment | Government: that rule applies to drug-trafficking enhancement, not COV enhancement | Rejected — the exclusion does not apply to COV enhancements; enhancement stands |
Key Cases Cited
- Puckett v. United States, 556 U.S. 129 (plain-error review governs unpreserved sentencing challenges)
- Spears v. United States, 555 U.S. 261 (courts may categorically disagree with Guidelines on policy grounds)
- United States v. Calderon-Pena, 383 F.3d 254 (treating certain prior convictions for enhancement purposes)
- United States v. Rojas-Gutierrez, 510 F.3d 545 (holding Cal. § 220(a) is a crime of violence)
- United States v. Rivera-Perez, 322 F.3d 350 (discussion of punishment exposure for § 220(a))
- United States v. Hebron, 684 F.3d 554 (prejudice inquiry under plain-error sentencing review)
- United States v. Brown, 826 F.3d 835 (court may decline corrective relief when record shows sentence was nevertheless fair)
- United States v. Reyes, 300 F.3d 555 (plain-error standard elements)
- United States v. Rodarte-Vasquez, 488 F.3d 316 (district court’s discretion to vary and consider pending amendments)
- United States v. Clay, 787 F.3d 328 (same)