929 F.3d 200
5th Cir.2019Background
- Cortez-Gonzalez pleaded guilty to one count of transporting illegal aliens after CBP observed a pickup unload migrants and arrested him during a foot pursuit; other counts were dismissed on government motion.
- The Presentence Report applied base offense level 12 and recommended a 4-level enhancement under U.S.S.G. § 2L1.1(b)(3)(B) because defendant had two prior felony immigration convictions (2003 and 2017).
- The 2003 conviction, however, was too old to receive criminal-history points under U.S.S.G. § 4A1.2(e), so defendant argued it should not count as a predicate for the § 2L1.1 enhancement.
- At sentencing the district court overruled the objection, applied the 4-level enhancement, and sentenced Cortez-Gonzalez to 37 months (high end of Guidelines).
- On appeal, the sole issue was whether the district court erred in using the 2003 conviction as a predicate for the § 2L1.1(b)(3)(B) enhancement despite § 4A1.2(e) rendering it ineligible for criminal-history points.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior conviction ineligible for criminal-history points under §4A1.2(e) can serve as a predicate for the §2L1.1(b)(3)(B) enhancement | The 2003 conviction was "too stale" and, because it did not receive criminal-history points, it cannot be used to trigger the §2L1.1(b)(3) enhancement | The Guideline text and commentary permit using prior felony convictions for the enhancement even if those convictions do not yield criminal-history points under Chapter Four | Court affirmed: §2L1.1(b)(3) unambiguously permits counting such prior convictions; commentary does not impose the inverse limitation and rule of lenity does not apply |
Key Cases Cited
- United States v. Nash, 729 F.3d 400 (5th Cir.) (standard of review for Guidelines interpretation)
- United States v. Serfass, 684 F.3d 548 (5th Cir.) (apply ordinary statutory construction to Guidelines)
- Lamie v. United States Trustee, 540 U.S. 526 (2004) (enforce unambiguous statutory language)
- United States v. Miller, 607 F.3d 144 (5th Cir.) (authority of Guidelines commentary)
- United States v. Johnston, 559 F.3d 292 (5th Cir.) (treatment of commentary)
- United States v. Camacho-Ibarquen, 410 F.3d 1307 (11th Cir.) (Sentencing Commission can explicitly limit application of convictions)
- United States v. Rabanal, 508 F.3d 741 (5th Cir.) (end inquiry when guideline language unambiguous)
- United States v. Bustillos-Pena, 612 F.3d 863 (5th Cir.) (rule of lenity applies to ambiguous Guidelines)
- Gall v. United States, 552 U.S. 38 (2007) (procedural-error examples include miscalculating Guidelines)
- Anders v. California, 386 U.S. 738 (1967) (procedures for counsel seeking to withdraw on appeal)