Appeal from the United States District Court for the Northern District of Texas.
For United States of America, Plaintiff - Appellee: Leigha Amy Simonton, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX; Michelle Denise Allen-McCoy, Assistant U.S. Attorney, Immigration & Customs Enforcement, Irving, TX.
For Fermin Rodriguez-Bernal, Defendant - Appellant: Todd Alan Durden, Durden Law Firm, Keller, TX; Brian James Newman, Fort Worth, TX.
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
Fermin Rodriguez-Bernal was sentenced to two years of imprisonment after being convicted of possession with intent to distribute less than one gram of heroin under Texas Health and Safety Code Section 481.112(b). After he had served ten months, his sentence was discharged, and he was released to immigration detainers and removed to El Salvador. He later pleaded guilty of illegally reentering the United States in violation of 8 U.S.C. § § 1326(a) and (b)(2). The district court sentenced him to seventy months of imprisonment after applying, inter alia, a sixteen-level enhancement under U.S. Sentencing Guidelines (" U.S.S.G." ) § 2L1.2(b)(1)(A)(i) for the possession-with-intent offense. Rodriguez-Bernal maintains that it was error to apply the enhancement and that the sentence is substantively unreasonable. We affirm.
Because Rodriguez-Bernal " preserved his objection to the enhancement, '[w]e review the district court's interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error.'" United States v. Martinez-Lugo, No. 13-40924, 782 F.3d 198, at *4 (5th Cir. Mar. 27, 2015) (per curiam) (alteration in original) (quoting United States v. Baker, 742 F.3d 618, 620 (5th Cir. 2014)). " We analyze the Guidelines under the rules that apply to the interpretation of statutes. The text of the guideline is the starting point in the analysis; the commentary is considered authoritative. We use 'a plain-
meaning approach' in our interpretation of the Sentencing Guidelines." United States v. Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003) (per curiam) (citations omitted).
Section 2L1.2(b)(1)(A)(i) provides that the offense level for unlawfully entering the United States shall be increased by sixteen if, inter alia, the defen-dant previously was deported after " a conviction for a felony that is a drug trafficking offense for which the sentence imposed exceeded 13 months . . . ." " 'Sentence imposed' has the meaning given the term 'sentence of imprison-ment' in Application Note 2 and subsection (b) of § 4A1.2 . . . ." § 2L1.2 cmt. n.1(B)(vii). Section 4A1.2(b)(1), in turn, defines " sentence of imprisonment" as " a sentence of incarceration and refers to the maximum sentence imposed." The " maximum sentence imposed" can differ from the time actually served: " [T]he length of a sentence of imprisonment is the stated maximum . . . in the case of an indeterminate sentence of one to five years, the stated maximum is five years . . . . [C]riminal history points are based on the sentence pronounced, not the length of time actually served." § 4A1.2 cmt. n.2. But there is an important exception: " If part of a sentence of imprisonment was suspended, 'sentence of imprisonment' refers only to the portion that was not suspended." § 4A1.2(b)(2).
Rodriguez-Bernal avers that his " sentence of imprisonment" was less than thirteen months because he was discharged after serving ten. Equating " discharged" with " suspended" under § 4A1.2(b)(2), he claims that the district court erred by counting the time during which his sentence was discharged toward the " sentence of imprisonment." He is mistaken for two independent reasons. First, his discharged sentence does not qualify as a suspended sen-tence under § 4A1.2(b)(2) because it was not suspended by a ...