46 F3d 8 United States v. Garcia-Rico

46 F.3d 8

UNITED STATES of America, Plaintiff-Appellee,
Jose GARCIA-RICO, Defendant-Appellant.

No. 94-10761
Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

Feb. 10, 1995.

Helen M. Liggett, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Lubbock, TX, for appellant.

Denise Williams, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Lubbock, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before DUHE, WIENER and STEWART, Circuit Judges.


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Jose Garcia-Rico was convicted of illegal reentry after deportation under 8 U.S.C. Sec. 1326(a), (b)(2) (1988). He appeals the district court's sixteen level enhancement of his sentence under U.S.S.G. Sec. 2L1.2(b)(2).1 The court applied the Sec. 2L1.2(b)(2) enhancement because Garcia-Rico was previously deported after a conviction for voluntary manslaughter. Garcia-Rico contends that voluntary manslaughter, at the time he committed it, did not constitute an aggravated felony under the statute. We affirm.



Garcia-Rico was convicted of voluntary manslaughter on January 18, 1990, and thereafter deported. He reentered this country illegally and was arrested in March 1994. He pled guilty to one count of illegal reentry after deportation under 8 U.S.C. Sec. 1326.2 The PSR recommended a sixteen level enhancement under Sec. 2L1.2(b)(2). Garcia-Rico objected to the PSR's recommendation on the grounds that voluntary manslaughter only became an aggravated felony under 8 U.S.C. Sec. 1326 on November 29, 1990.3 He committed the voluntary manslaughter before that date. The district court nonetheless adopted the PSR's recommendation.



Whether the Sentencing Guidelines apply to a prior conviction is a question of law. United States v. Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 395, 126 L.Ed.2d 343 (1993). We review questions of law de novo. Id.


Congress defines the term "aggravated felony" in 8 U.S.C. Sec. 1101(a)(43). Congress amended the definition in 1990 to include "any crime of violence ... for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years." Immigration Act of 1990, Pub.L. No. 101-649, Sec. 501(a), 104 Stat. 4978, 5048 (1990). The amended definition "shall apply to offenses committed on or after the date of the enactment of this Act." Id. Sec. 501(b), 104 Stat. at 5048. Congress enacted the Immigration Act on November 29, 1990. Because Garcia-Rico committed voluntary manslaughter before that date, he contends that the amended definition of aggravated felony does not apply either to 8 U.S.C. Sec. 1326(b)(2) or U.S.S.G. Sec. 2L1.2(b)(2).4


In United States v. Saenz-Forero, 27 F.3d 1016 (5th Cir.1994), we addressed whether 8 U.S.C. Sec. 1326(b)(2) could apply to an aggravated felony committed before 1988 without violating the Ex Post Facto Clause.5 The defendant had been convicted of an aggravated felony in 1985, deported in 1986, and convicted of illegal reentry in 1992. Because the defendant violated Sec. 1326 in 1992, we rejected his ex post facto argument. Id. at 1020-21; see also United States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.1994) (noting that the relevant offense is the current Sec. 1326 violation, not the predicate crime).


The Ninth Circuit addressed the precise question raised in this appeal in United States v. Ullyses-Salazar, 28 F.3d 932 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1367, 131 L.Ed.2d 223 (1995). The defendant had been convicted of armed robbery in 1983, deported, and convicted of illegal reentry in 1992. He contended that armed robbery became an aggravated felony only after Congress enacted the 1990 amendment to Sec. 1101(a)(43). The court disagreed and applied the definition of aggravated felony that existed at the time the defendant was arrested for illegal reentry. Id. at 938 (citing Arzate-Nunez, 18 F.3d at 735). Based on Arzate-Nunez and a reading of the statute, the court determined that the relevant offense was the defendant's violation of Sec. 1326. Id. at 738-39.


We agree with the Ninth Circuit's conclusion in Ullyses-Salazar, and we consider it consistent with our decision in Saenz-Forero. The amended definition of Sec. 1101(a)(43) applies to offenses committed on or after November 29, 1990. The relevant offense is Garcia-Rico's illegal reentry into this country. Because he violated Sec. 1326 in 1994, we apply the amended definition of aggravated felony to Garcia-Rico.6 His voluntary manslaughter conviction constitutes an aggravated felony. Thus, the district court properly applied the Sec. 2L1.2(b)(2) enhancement.


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For the foregoing reasons, Appellant's sentence is



1 U.S.S.G. Sec. 2L1.2 is the Sentencing Guideline applicable to the offense of unlawful reentry. Sec. 2L1.2(b)(2) provides for a 16 level enhancement when "the defendant previously was deported after a conviction for an aggravated felony."


An alien who is deported and later found illegally in the United States violates Sec. 1326(a). If the alien is convicted of an aggravated felony before deportation, then Sec. 1326(b)(2), which carries a maximum sentence of 15 years, also applies


Garcia-Rico does not dispute that his act of voluntary manslaughter would constitute an aggravated felony if committed after that date


The commentary to Sec. 2L1.2 defines aggravated felony in accordance with the amended definition. See U.S.S.G. Sec. 2L1.2 commentary n. 7, added by Amendment 375 (effective Nov. 1, 1991)


Congress added Sec. 1326(b)(2) in 1988. Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, Sec. 7345(a)(2), 102 Stat. 4181, 4471 (1988)


We apply the amended definition to both Sec. 1326(b)(2) and Sec. 2L1.2(b)(2)