United States v. Fermin Rodriguez-Bernal
2015 U.S. App. LEXIS 5418
| 5th Cir. | 2015Background
- Defendant Fermín Rodriguez-Bernal was convicted in Texas of possession with intent to distribute <1 gram heroin and sentenced to 2 years; he served ~10 months, was discharged by the Texas prison system, and deported to El Salvador.
- He later pleaded guilty to illegal reentry under 8 U.S.C. §§ 1326(a), (b)(2).
- At sentencing for the § 1326 offense, the district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on the prior drug-trafficking conviction with an imposed sentence exceeding 13 months, producing a 70-month term.
- Rodriguez-Bernal objected, arguing his discharged term should be treated as a suspended sentence under U.S.S.G. § 4A1.2(b)(2), so the relevant ‘‘sentence of imprisonment’’ did not exceed 13 months and the enhancement should not apply.
- The Fifth Circuit majority affirmed, holding (1) a discharge by a corrections agency is not a judicial suspension under § 4A1.2(b)(2), (2) a Texas discharge is not the functional equivalent of a suspended/conditionally discharged sentence for purposes of the Guidelines, and (3) the § 2L1.2 enhancement and the within-guidelines sentence were proper.
Issues
| Issue | Rodriguez-Bernal's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the portion of the Texas sentence discharged after ~10 months counts as a "suspended" portion under U.S.S.G. § 4A1.2(b)(2) | The discharged time is equivalent to a suspended portion, so the "sentence of imprisonment" did not exceed 13 months | The discharge was an administrative release (by corrections/immigration), not a judicial suspension; Guidelines count the pronounced maximum | Held: Not a suspension — only judicial suspensions qualify; the pronounced maximum counts for Guidelines purposes |
| Whether a Texas "discharge" is functionally equivalent to a conditional discharge/suspended sentence (as in other states) | The discharge should be treated like a suspended/conditional discharge, avoiding the enhancement | Government: Texas law distinguishes discharge from suspension/conditional discharge; here court did not suspend execution and DOC administratively discharged and deported him | Held: Texas discharge is not equivalent to a suspended sentence for § 4A1.2(b)(2); Salazar-Basaldua dictum declined as persuasive |
| Whether the prior <1g heroin possession with intent constitutes a "drug trafficking offense" under § 2L1.2 | Argues (invoking Moncrieffe) the prior offense is not a qualifying drug-trafficking felony | Government: offense qualifies based on Fifth Circuit precedent | Held: Enhancement proper — Fifth Circuit precedent controls and treats the offense as a drug-trafficking offense |
| Whether the 70-month within-Guidelines sentence is substantively unreasonable | Seeks resentencing as excessive; asks court to reweigh § 3553(a) factors | Government: sentence is within properly calculated Guidelines range and sentencing court balanced relevant § 3553(a) factors | Held: Sentence is presumptively reasonable and district court did not abuse discretion |
Key Cases Cited
- United States v. Harris, 237 F.3d 585 (6th Cir. 2001) (administrative early release/parole does not constitute a judicial suspension for § 4A1.2(b)(2))
- United States v. Gajdik, 292 F.3d 555 (7th Cir. 2002) (early program release by corrections not a suspension under Guidelines)
- United States v. Garcia-Gomez, 380 F.3d 1167 (9th Cir. 2004) (release by corrections/INS is not a judicial suspension under § 4A1.2(b)(2))
- United States v. Mendez-Villa, 346 F.3d 568 (5th Cir. 2003) (Guidelines analysis uses plain meaning; pronounced sentence controls over time actually served)
- United States v. Brooks, 166 F.3d 723 (5th Cir. 1999) (discussion distinguishing judicially suspended sentences and administrative early-release contexts)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (Supreme Court decision referenced by defendant; court noted Fifth Circuit precedent rejects defendant's Moncrieffe-based argument)