On August 22, 2001, Defendant-Appellant Silverio Cordoza-Estrada, a citizen of Mexico, was convicted of simple assault in New Hampshire state district court for punching a man in the face, breaking his nose. He was sentenced to twelve months of imprisonment with ten months suspended. Following this conviction, Cordoza-Estrada was deported. Two years later, he was arrested at his place of work in Hudson, New Hampshire. After pleading guilty to a one-count information, Cordo-za-Estrada was convicted of re-entering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and sentenced to eighteen months of imprisonment and three years of supervised release. He now appeals his sentence, arguing that his prior conviction for a simple assault was a misdemeanor under New Hampshire law and should not have been treated as an “aggravated felony” under § 1326(b)(2) or U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(1)(C) (Nov.2002). Appellant also argues that his sentence is invalid under
Blakely v. Washington,
— U.S. -, 124. S.Ct. 2531,
1. Aggravated Felony
We review whether the conviction is an aggravated felony
de novo. United States v. Santos,
The Sentencing Guideline applicable to unlawfully re-entering or remaining in the United States under § 1326 provides that the base offense level of eight is increased by eight levels for a defendant who was deported after a “conviction for an aggravated felony.” U.S.S.G. § 2L1.2(b)(l)(C). Application Note 2 states: “For purposes of subsection (b)(1)(C) ‘aggravated felony’ has the meaning given that term in 8 U.S.C. § 1101(a)(43), without regard to the *58 date of conviction of the aggravated felony.”
Appellant argues that the statutory definition of “aggravated felony” is ambiguous because it encompasses crimes traditionally regarded as misdemeanors, as well as felonies, and urges that under the rule of lenity, he should not have been subject to the enhanced penalty provision in § 1326(b)(2).
1
He cites two dissenting opinions to support his argument.
See United States v. Pacheco,
We agree with the phalanx of circuit courts that have rejected similar challenges and held that the statutory definition of the term “aggravated felony” in § 1101(a)(43) is a term of art that includes within its ambit certain misdemeanors under state law that carry a sentence of at least one year.
See Pacheco,
Under this caselaw, the pivotal question is not whether a crime is labeled a felony or a misdemeanor under state law, or whether it has conventionally been considered a misdemeanor, but whether the crime meets the explicit definition of “aggravated felony” under § 1101(a)(43)(F). The rule of lenity does not apply simply because a statute requires interpretation.
See United States v. Ahlers,
Appellant similarly argues that U.S.S.G. § 2L1.2(b)(l)(C) is ambiguous because his simple ássault conviction meets the definition of a misdemeanor in Application Note 3(A), which defines “misdemeanor” as “any federal, state or local offense punishable by a term of imprisonment of one year or less,” and does not fall within the definition of “felony” in Application Note l(B)(iv), which defines “felony” as “any federal, state, or local offense punishable by a term exceeding one year.” That argument is unpersuasive in light of Application Note 2, which specifically defines “aggravated felony” in U.S.S.G. § 2L1.2(b)(l)(C) equivalently with 8 U.S.C. § 1101(a)(43).
Accord Saenz-Mendoza,
Some courts have suggested that it is nonsensical for a feingle one-year sentence involving a crime of violence to be treated as an aggravated felony, bringing an eight-level increase, whereas three one-year misdemeanors that are crimes of violence could entail only a four-level increase under U.S.S.G. § 2L1.2(b)(1)(E).
See United States v. Ponce-Casalez,
2. Blakely .
The day before oral argument, Appellant filed a letter pursuant to Local Rule 28(j) arguing that the sentence was unlawful on the ground that
Blakely v. Washington,
- U.S. -,
Since Appellant’s argument depends upon a decision that did hot exist at the time of briefing, a' 28(j) letter is a perfectly appropriate avenue by which to present it — such letters are intended to provide the court with new authority.
See Freeman v. Barnhart,
The parties agree that the standard is plain error. Under the plain error test, an appellant “ ‘bears the burden of demonstrating (1) an error, (2) that is plain, (3) that affects substantial rights (i.e., the error was not harmless), and (4) that seriously undermines the fairness, integrity, and public reputation of judicial proceedings.’ ”
United States v. McCormack,
In
Apprendi,
the Supreme Court stated:
“Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was “plain.”
Compare United States v. Duncan,
In determining whether the error was plain, the Supreme Court has explained: “Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[J it is enough that an error be ‘plain’ at the time of appellate consideration.”
Johnson v. United States,
Because the trial judge’s sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.
Affirmed.
Notes
. “Crime of violence,” as defined in 18 U.S.C. § 16(a), includes an offense that has "as an element, the use, attempted use, or threatened use of physical force against the person or property of another.” Appellant does not dispute that the New Hampshire assault misdemeanor falls within this definition.