April 3, 2015
UNITED STATES OF AMERICA, Plaintiff-Appellee,
FERMIN RODRIGUEZ-BERNAL, Defendant-Appellant
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 court. Second, a discharged sentence under Texas law is not equivalent to a suspended sentence.
Only a court can suspend a sentence for purposes of the § 4A1.2(b)(2) exception. " The defining characteristic of a 'suspended sentence' under the . . . Guidelines is that it is suspended by a judicial officer, rather than an executive agency."  This decision accords with all circuits to have considered the issue.
In United States v. Harris, 237 F.3d 585, 587-88 (6th Cir. 2001), the defendant was sentenced to three years but was paroled after only eighteen days because of prison overcrowding. The court held that his criminal history score should be based on the entire three-year sentence because administrative decisions to parole do not qualify as a " suspension."  " In reaching
that result, the court relied on U.S.S.G. Ch. 7 Pt. A[(2)], which describe[s] the power formerly vested in federal courts (prior to the implementation of the federal sentencing guidelines) to suspend the imposition of a sentence of imprisonment and place a defendant on probation." Garcia-Gomez, 380 F.3d at 1172. Because Chapter 7 refers " to a court's authority to suspend sentences . . . the term 'suspended' [in § 4A1.2(b)(2)] refer[s] only to judicial suspensions." Id.
The same conclusion was reached in United States v. Gajdik, 292 F.3d 555, 556 (7th Cir. 2002). There the defendant had been sentenced to five years of imprisonment but was placed into a " boot camp" and released by the state department of corrections after only 121 days. The court recognized that " under 18 U.S.C. § 3651, only a court, not an executive agency, could suspend a sentence," and release from the boot camp " did not operate to 'suspend' the remainder of his five-year sentence [under 4A1.2(b)(2)] . . . . Rather, the procedure more closely resembles a pardon or commutation by the executive." 
The court in United States v. Chavez-Diaz, 444 F.3d 1223, 1226-27 (10th Cir. 2006), adopted the same reasoning, concluding that the decision by the INS to deport a defendant twenty-six days into his four-to-six-year sentence did not suspend it under § 4A1.2(b)(2). Likewise, in United States v. Hernandez, 27 F.App'x 36, 39 (2d Cir. 2001) (per curiam), the court stated that " '[s]us-pension' [under § 4A1.2(b)(2)] does not, however, refer to time not served because of the decision of a government agency, here the INS, which deported [the defendant] prior to the expiration of his sentence; it refers to the judicial authority of a court."
This court cited Hernandez favorably in United States v. Guerrero-Aguilar, No. 01-40525, 2001 WL 1751459, at *2 (5th Cir. Dec. 26, 2001) (unpublished), stating that " [g]iven the unsettled nature of the issue in this Circuit, to assume that a sentence suspended by another branch of the government is not a suspended sentence for the purposes of § 4A1.2(b)(2) is not a clear or obvious error." Furthermore, the Garcia-Gomez court, 380 F.3d at 1173, noted that its " holding is also consistent with . . . United States v. Brooks, 166 F.3d 723 (5th Cir. 1999)." 
We agree with our sister circuits that Rodriguez-Bernal's sentence was not " suspended" under § 4A1.2(b)(2) because " a correctional administrator, not a judge, made the decision to release [the defendant] prior to the completion of the term of his sentence." Garcia-Gomez, 380 F.3d at 1172. The state judgment of conviction shows that the sentencing court did not initially impose a suspended sentence: Under the heading, " Execution / Suspension of Sentence (select one)," the court chose the first option, which provides, " The Court ORDERS Defendant's sentence EXECUTED," rather than the second option: " The Court ORDERS Defendant's sentence of confinement SUSPENDED." Although Texas law authorizes the trial court, after entry of judgment, to " suspend the imposition of the sentence and place the defendant on community supervision," that did not happen here. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3(a). Instead, Rodriguez-Bernal served ten months of the sentence before it was discharged by the Texas Department of Criminal Justice, whereupon he was released to immigration detainers and deported.
Rodriguez-Bernal relies exclusively on United States v. Salazar-Basaldua, 342 F.App'x 985 (5th Cir. 2009) (per curiam), for the proposition that his discharged sentence qualifies as a suspended sentence under § 4A1.2(b)(2). There the defendant had been " convicted in Kentucky state court of trafficking a controlled substance and sentenced to a maximum term of seven years' imprisonment," but the sentencing court " conditionally dis-charged" the sentence. Id. at 986. Salazar-Basaldua later " pleaded guilty of unlawfully being present in the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b)." Id. This court held that the district court erred in applying the sixteen--level enhancement for the trafficking offense under § 2L1.2(b)(1)(A)(i) because, " [c]onditionally-discharged sentences are treated as unsupervised probation under Kentucky law" -a proposition for which there is much support in Kentucky caselaw. Any reliance on Salazar-Basaldua is misplaced because a discharged sentence under Texas law is not functionally equivalent to a suspended sentence.
The guidelines do not define " suspended sentence," but " [s]uspended sentences are usually imposed in conjunction with probation so that if a defendant commits another crime or violates a condition of probation, his suspended sentence is activated." 
Under our " plain meaning" approach, " [t]he text of the guideline is the starting point in the analysis" and the guidelines use the word " suspended" --a word with specific legal meaning--not the word " discharged" --a word with a different legal meaning. Mendez-Villa, 346 F.3d at 570. In the past, this court has carefully construed the words in the guidelines, declining to read in new exceptions to sentencing enhancements.
Rodriguez-Bernal offers no authority for the proposition that his discharge to an immigration detainer functioned like a suspended sentence. Texas courts use the term " discharge" differently from " suspension" or " probation." In Ex parte Gonzalez, 402 S.W.3d 843, 844 (Tex.App.--Corpus Christi 2013, no pet.), the court explained that the " trial court suspended Gonzalez's sentence of ten years in [prison] . . . and placed him on community supervision." The court later " terminated [the] suspended sentence . . . and discharged Gonzalez."  Those cases suggest that under Texas law a discharged sentence is unaccompanied by any continuing obligation, distinguishing the case at hand from the conditional discharge in Salazar-Basaldua.
Rodriguez-Bernal relies on dictum in Salazar-Basaldua, 342 F.App'x at 987, in which this court opined that " under [§ 4A1.2(b)(2)], the discharged portion of a sentence is not part of a 'sentence of imprisonment.'" Unpublished cases are not binding precedent, and there is little persuasive value to that pronouncement--there was no accompanying analysis, nor has Salazar-Basaldua been cited by any court. Furthermore, it was unnecessary to the resolution of the case--the holding turned on whether a conditionally discharged sentence under Kentucky law functioned like unsupervised probation, as discussed above. We decline to adhere to that statement.
Rodriguez-Bernal's remaining claims are meritless. Citing Moncrieffe v. Holder, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), he contends that his prior offense--possession with intent to distribute less than one gram of heroin--was not a drug-trafficking offense under § 2L1.2. We recently rejected that assertion in Martinez-Lugo, 782 F.3d 198, at *12-15. Rodriguez-Bernal also maintains that his seventy-month sentence--at the very bottom of the guidelines--is substantively unreasonable. " A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable." United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (per curiam). The district court considered the same theories that Rodriguez-Bernal advances now and found that his sentence was appropriate in light of " his drug trafficking convictions, his four DUIs, [and] the fact he has already been removed once from the United States . . . ." Rodriguez-Bernal asks this panel to reweigh the 18 U.S.C. § 3553(a) factors, but " [a]ppellate review is highly deferential as the sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant." Id. at 339. The district court did not abuse its sentencing discretion.
The judgment of sentence is AFFIRMED.
GRAVES, Circuit Judge, dissenting.
I disagree with the majority's conclusion that a discharged sentence does not qualify as a suspended sentence under U.S.S.G. § 4A1.2(b)(2). Because I would conclude that the district court erred by imposing the sixteen-level increase in Rodriguez-Bernal's base offense, I respectfully dissent.
Rodriguez asserts that the sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior drug trafficking offense was improper because the sentence for that offense was discharged after ten months. Section 2L1.2(b)(1)(A)(i) allows the base offense level to be increased by sixteen levels when the defendant was previously deported after " a drug trafficking offense for which the sentence imposed exceeded 13 months." U.S.S.G. § 2L1.2(b)(1)(A)(i). The commentary to Section 2L1.2 refers to U.S.S.G. section 4A1.2(b) and Application Note 2 to define " sentence of imprisonment." Section 4A1.2 says, in relevant part: " If part of a
sentence of imprisonment was suspended, 'sentence of imprisonment' refers only to the portion that was not suspended." U.S.S.G. § 4A1.2(b). Rodriguez relies on section 4A1.2 and United States v. Salazar-Basaldua, 342 F.App'x 985 (5th Cir. 2009), in support of his assertion that his sentence did not exceed thirteen months.
Though unpublished, Salazar-Basaldua addressed almost an identical issue. There, Salazar-Basaldua's sentence of seven years was conditionally discharged and he was credited with 239 days spent in custody. This court concluded that the sixteen-level enhancement did not apply because his sentence was not more than thirteen months. In its analysis, the court did note that conditional discharges are treated as unsupervised probation under Kentucky law. Id. at 987. However, more importantly, this court concluded that " under subsection (2) [of 4A1.2], the discharged portion of a sentence is not part of a 'sentence of imprisonment.'" Id.
The majority here says that " [a]ny reliance on Salazar-Basaldua is misplaced because a discharged sentence under Texas law is not functionally equivalent to a suspended sentence." However, the majority merely offers some cases that " suggest that under Texas law a discharged sentence is unaccompanied by any continuing obligation, distinguishing the case at hand from the conditional discharge in Salazar-Basaldua."
I disagree with any presumption that state court cases suggesting a difference in terminology would be more authoritative than a case, even unpublished, from this court explicitly concluding that " the discharged portion of a sentence is not part of a 'sentence of imprisonment." Salazar-Basaldua, 342 F.App'x at 987. This is also consistent with this court's previous decision in United States v. Guerrero-Aguilar, 31 F.App'x 159 (5th Cir. 2001), where we acknowledged the possibility of such a conclusion on de novo review. Specifically, this court said:
This Court has not yet addressed whether § 4A1.2(b)(2) applies to sentences suspended due to deportation, and Guerrero-Aguilar relies principally on two cases from other circuits, United States v. Tabaka, 982 F.2d 100 (3d Cir. 1992), and United States v. Dixon, 230 F.3d 109 (4th Cir. 2000), both of which held that a suspended sentence should not be counted for the purpose of tallying criminal history points under § 4A1.2(b)(2). Neither of these cases, however, involved a suspension due to deportation and, perhaps more central to our holding, neither case was decided under the plain-error standard of review.
Guerrero-Aguilar, 31 F.App'x at *2.
This court said nothing in Salazar-Basaldua to indicate that an unconditional discharge would somehow be more stringent than a conditional discharge or that the reason for the discharge is relevant. Regardless of why Rodriguez-Bernal's sentence was discharged, the fact that it was discharged without probation is more akin to his having completed the sentence. Thus, the discharge here would, at the very least, be the equivalent of a suspended sentence.
The majority further concludes that Rodriguez-Bernal's discharged sentence does not qualify as a suspended sentence because it was not suspended by a court. I disagree. We do not have the trial court record from the previous conviction before us to determine whether the trial court entered any order regarding the discharge. However, we do have a concession on the part of the Government establishing that, while Rodriguez-Bernal was serving his sentence, " an immigration
judge ordered him removed." An immigration judge is a quasi-judicial officer. See Reno v. Flores, 507 U.S. 292, 308 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Regardless of whether the trial court entered any order regarding the discharge, a judicial officer was responsible for Rodriguez-Bernal's discharge. See United States v. Garcia-Gomez, 380 F.3d 1167, 1172 (9th Cir. 2004).
Further, even if there is doubt about whether a discharged sentence qualifies as a suspended sentence under section 4A1.2(b)(2), the rule of lenity comes into play. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 284, 98 S.Ct. 566, 54 L.Ed.2d 538 (1978) (" [W]here there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." ); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971) (" [A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." ); United States v. Reedy, 304 F.3d 358, 367 (5th Cir. 2002) (" [A]mbiguity should be resolved in favor of lenity." ). Additionally, the rule applies " not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose." See Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).
For these reasons, I would conclude that the district court erred by imposing the sixteen-level increase in Rodriguez-Bernal's base offense and I would vacate and remand for resentencing. Therefore, I respectfully dissent.