934 F.3d 1056
9th Cir.2019Background
- Vicente Cuevas-Lopez, a Mexican national, was deported in 2004 and later (2017) pleaded guilty to attempted illegal reentry under 8 U.S.C. § 1326.
- Prior to sentencing on the § 1326 offense, Cuevas-Lopez had two Arizona second-degree burglary convictions (committed Nov. 1 and Nov. 3, 2007).
- An Arizona court on March 10, 2008 imposed two consecutive 3.5‑year sentences (aggregate seven years) on the same day.
- The PSR and the district court applied U.S.S.G. § 2L1.2(b)(3)(A) — a 10‑level enhancement triggered by a prior felony with "sentence imposed" of five years or more — aggregating the two 3.5‑year sentences under the Chapter 4 "single sentence rule" (U.S.S.G. § 4A1.2(a)(2)).
- Cuevas‑Lopez did not object at sentencing but appealed, arguing the single sentence rule should not apply to § 2L1.2(b) and that his sentences could not be aggregated to reach the five‑year threshold.
- The Ninth Circuit affirmed, holding that Chapter 4's single sentence rule governs the determination of which § 2L1.2(b) enhancement applies.
Issues
| Issue | Plaintiff's Argument (Cuevas‑Lopez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Chapter 4's single sentence rule (§ 4A1.2(a)(2)) may be used to aggregate multiple prior sentences when determining which § 2L1.2(b) enhancement applies | The text of § 2L1.2(b)(3)(A) speaks of "a conviction" and "the sentence" (singular), so separate convictions/sentences should not be aggregated | The Commission's commentary, Application Notes, and statement of reasons for the 2016 amendment show the Commission intended sentencing‑length rules in Chapter 4 (including aggregation) to govern § 2L1.2(b) | Affirmed — the single sentence rule applies; the district court correctly aggregated consecutive same‑day sentences to reach the five‑year threshold and applied the 10‑level enhancement |
| Proper standard of appellate review for unpreserved guideline interpretation | Seek de novo review because the issue is a pure question of law | Government urges plain‑error review; disputes Ninth Circuit’s "pure question of law" exception | Court did not decide the standard because it would affirm under either de novo or plain‑error review |
| Role of § 2L1.2 commentary and Amendment 802 in construing "sentence imposed" | Commentary referencing Chapter 4 does not explicitly cross‑reference the single sentence rule; plain text controls | Commission’s statement of reasons and application notes (esp. Notes 3 and 4) indicate Chapter 4 criminal‑history rules apply to § 2L1.2(b) | Court relied on Application Notes, Amendment 802 statement of reasons, and related Guidelines provisions to interpret § 2L1.2(b) as incorporating Chapter 4 aggregation rules |
| Whether to apply rule of lenity or avoid circuit split | Argues textual plain meaning requires no aggregation; favor lenity | Government and majority argue no grievous ambiguity and prefer uniformity with other circuits | Court declined lenity; cited Fifth Circuit decision (Garcia‑Sanchez) and other precedents to avoid split and affirmed aggregation |
Key Cases Cited
- Beckles v. United States, 137 S. Ct. 886 (2017) (explaining Guidelines are advisory but remain the starting point for sentencing)
- United States v. Booker, 543 U.S. 220 (2005) (holding Guidelines advisory after Sixth Amendment jury trial rule)
- Gall v. United States, 552 U.S. 38 (2007) (district courts must correctly calculate and treat Guidelines as initial benchmark)
- Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative unless inconsistent with guideline or statute)
- Peugh v. United States, 569 U.S. 530 (2013) (failure to correctly calculate the Guidelines is procedural error)
- United States v. Munoz‑Camarena, 631 F.3d 1028 (9th Cir. 2011) (district court must correctly calculate Guidelines range)
- United States v. Martinez‑Varela, 531 F.3d 298 (4th Cir. 2008) (applied aggregation for prior sentences in pre‑2016 § 2L1.2 context)
- United States v. Garcia‑Sanchez, 916 F.3d 522 (5th Cir. 2019) (held single sentence rule applies to § 2L1.2(b) under 2016 Guidelines; persuasive authority relied on by Ninth Circuit)