*2 HARTZ, Circuit Judges.
HARTZ, Circuit Judge. Isaac Bardo ap- Ruiz-Gea *3 peals the imposed following his guilty plea to illegal reentry of a deported alien, in violation of 8 U.S.C. 1326. The principal issue on appeal proper is the interpretation of a provision in the United States Sentencing relating offense. § 2L1.2(b)(l)(A)(i), states: “If the defen- dant previously Was deported, or unlawful- ly in States, remained the United after ... a conviction for a felony that ... a drug- trafficking offense for which the sentence ..., exceeded 13 months increase [the offense by level] 16 levels[.]” Defen- dant contends provision that this does not apply to him because he did not receive a exceeding 13 months until his probation on a state drug-trafficking of- fense was revoked his unlawful following reentry. He also contends the dis- trict court by erred adding point to his criminal history score based on finding that he reentry committed the offense less years than two after his from con- release finement on the drug-trafficking con- 4Al.l(e). viction. See USSG We exer- jurisdiction 3742(a) cise under 18 U.S.C. and affirm.
I. BACKGROUND Defendant, citizen, a Mexican Wilson, Scott Keith Assistant Federal was convicted by a Utah state court of (Steven Public Defender Killpack, B. Fed- attempted distribution of a controlled sub- Defender, eral Public with him on the stance. July He was sentenced on briefs), UT, Salt City, Lake for Defen- 1997, years, to 15 danb-Appellant. but the suspended, sentence was with the court ordering him to days jail serve 90 Hagen, Diana Assistant United States (Paul Warner, placing and him Attorney probation on M. United States Sartorio, Attorney, Shortly and months. Laurie J. thereafter he was re- Assistant Attorney, brief), on custody leased to the Immigration Salt UT, City, Lake for Plaintiff-Appellee. (INS). and Naturalization Service “Unlawfully En- 2L1.2—entitled July Section Mexico him to deported INS in the United Remaining tering him not to return. or 1997, and ordered to in- the district court States” —instructs reentered the point At some level base offense a defendant’s crease arrested Utah He was United States. previously the defendant “[i]f 16 levels con- of a possession 1998 for August in the unlawfully remained deported, substance, in December again trolled for a States, ... a conviction a lawful arrest. interfering with 1998 for of- drug trafficking is ... 20, 2000, felony state court the Utah On June ex- eon- for the 1997 which the sentence fense for revoked reimposed offense months[.]” trolled-substance ceeded sentence. 15-year prison 1- 2L1.2(b)(l)(A)(i). contrast, original when By *4 in state remained apparently Defendant drug-traf- after deported defendant He was then months. custody for 13 “for which the sentence ficking conviction custody of the United to the leased less,” the of- 13 months or imposed was case. present of the prosecution Id. by levels. level is increased fense l(A)(iv) 2001, 2L1.2(b)(l)(B). was Application Defendant note April On indictment charged any part in a one-count “If all or states: to the ... and unlawfully “present having been probat- of was a sentence of following a in the United States found” deferred, ed, stayed, or ‘sen- suspended, guilty to pleaded deportation. Defendant portion imposed’ refers tence 7, 2001, indictment, and November de- suspended, probated, that not imprison- months’ to 57 was sentenced 2L1.2, ferred, Id. comment. stayed.” or super- months’ ment, by followed to be (n.l(A)(iv)). calculating the sentence vised release. that his 1997 does not contest Defendant Sentencing of the under the 2001 edition trafficking offense.” “drug was a conviction (which effective six had become imposed” argues that the “sentence But he case), the sentencing in this days not exceed 13 conviction did for that that the sentence court determined 15-year initially the 1- to months because 1997 controlled- for Defendant’s and he was suspended term was prison 13 months. exceeded conviction substance days jail. Al- only 90 ordered to serve Defendant’s base therefore increased It the 1- to 15- acknowledges that by though he as mandated level 16 levels offense 2L1.2(b)(1)(A)®. ultimately imposed when court also term was year USSG history point in June he added a criminal his was revoked 4Al.l(e), finding that based on its that irrelevant under contends this is illegal committed offense relat- He to make two appears guideline. years of his release reentry within two support of this contention: arguments ed De- on the 1997 conviction. l(A)(iv) (1) application note he construes rulings. challenges those fendant now that are ulti- sentences say suspended the “sen- part are not mately imposed II. DISCUSSION (2) he contends imposed”; tence 'prior conviction A. Enhancement 15-year sentence was the 1- to because 2Ll.2(b)(l)(A)(i) deportation, his imposed following ... a ... conviction “deported the district Defendant contends ex- for which the sentence ... 1997 controlled- using court erred months[.]” ceeded sen- conviction to enhance his substance Be- 2L1.2(b)(l)(A)(i). (emphasis tence under USSG fore these addressing arguments, we must To plain error, establish Defen determine our standard of review. (1) dant (2) “must show: error, that is plain, which means clear or obvious under 1. Standard review law, current that a£fect[s] substan Ordinarily, “[t]he district court’s rights. tial If these three elements are sentencing guidelines satisfied, then we may exercise discretion is a legal question subject to de novo re to correct the error if it seriously affect[s] view.” Castro-Rocha, United States v. fairness, integrity, public reputation Cir.2003). 848-49 De judicial (internal proceedings.” Id. quo novo review appropriate, however, only tation marks and omitted; citations altera if issue was raised below. Defendant tions in the original). Although “basing a contends that he raised below “func sentence on the wrong guideline range equivalent” tional appellate argu constitutes a fundamental error affecting by arguing ments at sentencing that the ..., rights substantial thereby satisfying length of the sentence imposed for the the third prong error inquiry,” 1997 conviction warranted downward de (internal id. at 1308-09 quotation marks parture under former application note 5 to omitted), Defendant still must show that the 2000 edition the Sentenc *5 “if error, there was it was plain,” id. at ing Aplt.’s Guidelines. Opening Br. at 5. 1309. Our standard of settled, review we application That note allowed downward now turn to Defendant’s arguments. adjustments from the presumptive offense level set forth in upon the satisfac 2. What was the imposed”? “sentence tion conditions, of certain including that the term imprisonment imposed for the According Defendant, under prior aggravated-felony conviction did not 2L1.2(b)(l)(A)(i) and its commentary the exceed year. one 2L1.2, See USSG com district court should have only considered (n.5) (2000). ment. But Defendant was the 90-day sentence originally imposed sentenced the 2001 Guidelines—at for his 1997 drug-trafficking conviction, ig the insistence counsel, of his trial who noring the fact that the suspended sen successfully sought postponement of De tence subsequently was imposed when he fendant’s sentencing hearing until the 2001 violated probation. his disagree. We Sec Guidelines became effective—and those tion speaks of a “convic a contained completely rewrit tion ... for which the imposed sentence ten version 2L1.2 and accompanying exceeded 13 months.” The sentence im commentary. argu Defendant made no posed after revocation is imposed for the ment addressed to the text of the 2001 original conviction. Supreme As the Court version of 2L1.2 and new application recently explained: “A suspended sentence l(A)(iv). note event, In any only state is a prison term imposed for the offense of ment below that resembles his contentions conviction. Once term is trig on was appeal assertion, his argu without gered, the defendant is incarcerated not ment, that his state sentence was only for the violation, probation but for the 90 days; he made no argument regarding underlying offense.” Shelton, Alabama v. timing probation of the revocation 654, 662, U.S. 122 S.Ct. relation to deportation. His appellate (2002). L.Ed.2d 888 arguments not having below, been raised our only review is for plain Application l(A)(iv), error. See note on which De- United States v. Whitney, relies, fendant does not address how to (10th Cir.2000). treat initially suspended sentence that con state-court years’ probation proba- revocation of upon the
is
viction;
probation,
he violated
any part of
“If all or
only:
says
It
tion.
sentence was
however,
probationary
was probated,
imprisonment
sentence
year
sentenced to
deferred,
stayed, ‘sentence
and he was
revoked
suspended,
that
that
argued
portion
The defendant
jail.
imposed’ refers
deferred, or
of his
suspended,
upon revocation
probated,
not
sentence
2L1.2,
part
comment.
be
stayed.”
not
considered
probation should
(n.l(A)(iv)).
probation,
crime,
revocation
Upon
imposed for
the sentence
no
however,
sentence
imposed”
only the “initial
“suspended.”
longer
guideline.
be considered
should
The
at 285.
Hidalgo-Macias, 300 F.3d
circuits
other two
agree with the
We
argument,
rejected the
Second Circuit
matter.
have discussed
of a sentence
imposition
“the
holding that
Compian-Torres,
v.
following revocation
(5th Cir.2003),
wrote:
the Fifth Circuit
original
[ie.,
a modification
note
application
Commentary
“The
sentences,
sentence,
part of
l(A)(iv)
be considered
probated
and must
applies to
]
origi
A sentence
for the
imposed’
probation revocations....
not
the ‘actual
actually ‘imposed’
revocation
Circuit
imposed on
Id. The Ninth
nal offense.”
‘pro
and not
Jimenez,
in the Guideline
described
as
v.
United States
agrees. See
Commentary.”
excepted
(9th Cir.2001).
bated’ as
1120, 1125-26
concluded,
“An
court
persuaded by Defendant’s
We are
originally
as ‘sentence
imposed’
‘sentence
enhance-
that the 16-level
policy argument
Similarly, in
Id.
imposed’ is untenable.”
only the most serious
reserved for
ment is
Moreno-Cisneros, 319
United States
*6
convictions,
probation
later
and “a
(9th Cir.2003),
Ninth
456,
is
relevant
revocation
said,
applica
“[T]he
Circuit
Guideline
Aplt.’s
th[e]
of
offense.”
seriousness
limit the sentence
note ... do not
tion
10. As the Ninth Circuit
Br. at
Opening
original
as it was
imposed to the sentence
stated:
no reason to
and we can see
ly imposed,
treating
for
can discern no basis
[W]e
wording
of
a
infer such limitation
over
thirteen
original
sentence of
provisions.”
more serious
incarceration as
months
Moreover,
im-
including the sentence
months
of over thirteen
than a sentence
part
as
probation
revocation of
posed upon
original
of the
incarceration
consists
purposes
for the
imposed”
of the “sentence
the revoca-
the result of
plus
with
is consistent
of
A
who
defendant
probation.
tion of
un-
have been treated
how such sentences
hip pro-
by the
of
not abide
terms
does
2L1.2. United
provisions
other
der
should
has demonstrated
bation
Hidalgo-Macias, 300 F.3d
in the
given probation
been
not have
(2d Cir.2002),
Circuit construed
the Second
place.
first
2L1.2(b)(l)(C),
eight-
mandates an
which
Moreno-Cisneros,
ficking offense. plain there was no or this court must have addressed the error. issue. (finding See id. no error in *7 interpretation guideline of provision when Timing imposition the sen- of of Supreme neither Court nor Tenth Circuit tence issue). had directly addressed the The Defendant argues also that he was precedent not, absence of such will howev “deported not ... ... a conviction after er, prevent a finding plain of if error the felony for a that is ... a drug-trafficking district interpretation court’s “clearly was offense for which the sentence Brown, erroneous.” See United v. States exceeded 13 months[.]” USSG (10th Cir.2003) (inter 1158 2L1.2(b)(l)(A)(i) added). § (emphasis He omitted) (the nal quotation marks relies on the fact that the 1- 15-year to court’s “plain” error was when guideline sentence for his drug-trafficking con “clearly obviously” and was limited to a viction was not until single interpretation, the despite absence was revoked in June depor after his precedent). circuit tation. According to Defendant: The language of the There guideline Supreme is no Court or Tenth fers to a conviction and Circuit precedent sentence which addressing enhance- imposed prior deportation ments present the version of though error, “plain,” even any, if not presented to those similar § on facts Circuit, dictum, in Seventh initially suspended Circuit ie., Tenth when here — Dictionary indicated deportation Law and Black’s reinstated is after have we found in a manner Nor construed reentry. should be illegal guideline and But circuits. in application other court’s precedent contrary to district such cf. Guzman-Bera, F.3d v. States United guideline). curiam) Cir.2000) (11th (per 1019, 1021 adopt to urges us 2L1.2, aggravat (under version of prior of leni by applying the rule interpretation when apply did not ed-felony enhancement interpret am courts to ty, instructs which proba initially sentenced defendant favorably to statutes criminal biguous sentence), (without be suspended a tion Gay, v. accused. See United imposi subsequent revocation cause Cir.2001). But the 1222, 1232 not occur until term did tion after all other only when lenity is applied rule of illegal reen deportation defendant’s leave statutory for construction techniques (dic Jimenez, at 1125-26 try); Muscarello equipoise. in the court effect). tum to same States, 125, 138, 118 S.Ct. 524 U.S. reading of view, Defendant’s In our (“The rule of 141 L.Ed.2d First, 2L1.2(b)(l)(A)(i) compelled. not if, seizing every lenity applies “after deportation speaks provision derived, ... aid can be from which thing conviction,” imposition “after ... not as to guess than make no more we can immediately Second, not it is sentence.” (internal quota Congress intended.” what of the enhance- purpose that the obvious omitted; origi in ellipses marks tion it applying be undermined ment would nal)). possi two the choice between When this case. circumstances open is so meanings of a statute ble from 8' U.S.C. derives provision into lenity comes that the rule of debate 1326(b)(2), the penalty increases which inter hardly say that either one can play, alien been reentry had when illegal see no wrong. plainly We pretation felony aggravated of an convicted determining lenity for the rule of role regard- some doubt There is deportation. plain error below. there was whether which ing did that the district court We hold 2L1.2(b)(l)(A)(i) best serve would enhanced Defendant’s 1326(b)(2). Third, err when it plainly purposes under USSG if levels the enhancement provides 2L1.2(b)(l)(A)(i). deported, or “was the defendant unlawful- States, after ly remained ” Enhancement B. felony.... for a ... a conviction m.l(e) De- (emphasis *8 argument no that the district presented argues has fendant Defendant “unlawfully the how to construe to his garding adding point one court erred applicability language or USSG history remained” score under criminal here. court 4Al.l(e), the which instructs “if history points or two criminal add one of the context
A examination careful of instant the defendant committed us might convince purposes release years than less two fense cor- interpretation is the at [of aon however, is say, we cannot rect What one. 4Al.l(e) (empha days].” 60 wrong. least clearly court was district one court added (finding sis district at 1309 Whitney, 229 F.3d See
1189 point under this subsection based on its at committed the time of the reentry and finding that Defendant committed continues the time when the defendant reentry offense within two years is arrested for the offense.” United States release from for the 1997 state v. Lopez-Flores, 661, 275 (7th F.3d (The drug-trafficking offense. district Cir.2001) (collecting cases); accord United court assessed criminal history point States Mendez-Cruz, 885, F.3d than rather two because it had previously (D.C.Cir.2003). Moreover, added points two to Defendant’s criminal commentary states that history criminal history score 4Al.l(d), for com points should be 4Al.l(e) added under mitting the offense while probation. “if the defendant committed any part of 4Al.l(e) (“If §See 2 points are added (ie., instant any relevant con offense (d), item add only item.”).) 1 point for this duct) than years less two following release Defendant contends that this finding was from confinement” for a countable prior clearly erroneous. See United States v. comment, offense. 4A1.1, (n.5) McClatchey, 1122, (10th Cir. (emphasis added). Reentry prior to being 2003) (sentencing court’s fact are findings “found” clearly “part” constituted a of De error). reviewed for clear We disagree. fendant’s offense. Defendant was convicted of attempted The record contains ample evidence to distribution aof controlled substance, sen- support the district court’s finding that tenced for that 17, crime on July 1997, and Defendant reentered the United States deported to Mexico on July 30, 1997. within two years of July 1997. The Pre- Thus, to properly assess a history criminal (PSR) Report shows that Defen- point 4Al.l(e), the district court dant was arrested twice Utah in 1998: had to find that Defendant committed the once on drug charges on August 21, 1998, crime unlawful reentry by July 1999, and once for interfering with a lawful ar- two years after his “release from imprison- rest on 13, December 1998. Defendant ment.” does not dispute that these arrests oc-
According to curred; the indictment nor which does assert that he left the pleaded guilty, Defendant was States and then reentered after unlawfully “found” in the these arrests. Based on the facts stated 5, “[o]n or about March 2001,” PSR, in violation the district court found that of 8 U.S.C. R., I, 1326. Vol. Doc evidence at 1. was “overwhelming” that De- Although the offense of illegal fendant reentry may committed his offense within two have been completed date, years on that see of his release from confinement for United States v. Rosales-Garay, July 1997 drug-trafficking conviction. (10th R., Cir.2002), Ill, 1202-03 Vol. course, at Of the court was court was not required foreclosed from finding that to find that the evidence was Defendant’s commission of the overwhelming; offense be- it only needed to be con- gan at earlier point. vinced by “[A] previously the preponderance of the evi- deported alien who dence. illegally enters and See Yates, United States v. remains in the United States Cir.1994) (contested can violate the statute at points three different in facts at sentencing need be estab- time, namely, when the ‘enters,’ alien lished by preponderance evidence). *9 (2) enter,’ ‘attempts to any at The time finding court’s was not clearly in’ ‘found the United States.” Id. at 1202. erroneous. We therefore conclude that it In the case of a surreptitious like reentry properly added point to Defendant’s Defendant’s, “the ‘found in’ offense is first 4Al.l(e). criminal history
III. CONCLUSION of the dis- judgment AFFIRM We Ruiz-Gea, v. States court.
trict 01^242
No.
McWILLIAMS, Dissenting. Judge, binding 10th Cir is no apparently
There in this issue authority primary on the
cuit on a “clean Hence, writing arewe
case. in simply not I am
slate,” speak. so in United result reached
accord with Compian-Torres, v.
States Cir.2003) More v.
(5th or United Cir.2003).
no-Cisneros, F.3d 456 Judge accord complete
I am in in Moreno-Cisneros. dissent
Fletcher’s is well summarized matter this
My view on Judge Fletcher’s paragraph final
in the Moreno-Cisneros, at
dissent in follows: spoke as where be) (or easy case. should
“This is 2L1.2(b)(l) Guideline, Sec.
The amended imposed,’ ‘sentence phrase, new
contains a Application carefully defined l(A)(iv). as defined phrase,
Note ex- meaning that Note, plain has regret I sentences. suspended
cludes unwilling to follow majority is meaning.” Plaintiff-Appellant, HINER,
Arvine INC., COMPANY,
DEERE AND
Defendant-Appellee.
No. 01-3335. Appeals, States Court
Tenth Circuit.
Aug.