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United States v. Guillen-Cruz

United States Court of Appeals, Fifth Circuit

April 10, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
MARTIN GUILLEN-CRUZ, also known as Martin Guillen-Martinez, Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.

          JAMES L. DENNIS, Circuit Judge.

         Defendant-Appellant Martin Guillen-Cruz pleaded guilty to being found in the United States after a previous deportation in violation of 8 U.S.C. § 1326(a) and (b). The probation officer who prepared Guillen-Cruz's presentence report (PSR) added eight points to his offense level because he had a prior conviction for exporting defense articles on the United States Munitions List without a license in violation of 22 U.S.C. § 2778(b)(2) and (c). The PSR concluded that Guillen-Cruz's conviction constituted a prior aggravated felony for purposes of the United States Sentencing Guidelines (USSG or Guidelines) § 2L1.2(b)(1)(C), [1] as defined in 8 U.S.C. § 1101(a)(43)(C). After all the factors were accounted for, the PSR calculated Guillen-Cruz's offense level as 14. At sentencing, the district court reduced the offense level to 13, resulting in an advisory sentencing range of 18 to 24 months' imprisonment. The district court sentenced Guillen-Cruz to 24 months' imprisonment.

         Guillen-Cruz appeals, asserting an argument he did not raise below: the district court inappropriately imposed a sentencing enhancement pursuant to USSG § 2L1.2(b)(1)(C). Because we find that the district court erred in imposing the enhancement, that each factor of plain error review is satisfied, and that the error merits the exercise of our discretion, we VACATE Guillen-Cruz's sentence and REMAND for resentencing.


         This court reviews the district court's interpretation of the Guidelines de novo. United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000). Because Guillen-Cruz did not raise an objection to the enhancement before the district court, we review for plain error. See United States v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). To establish plain error, Guillen-Cruz must show: (1) an error or defect "that has not been intentionally relinquished or abandoned"; (2) that the legal error was "clear or obvious, rather than subject to reasonable dispute"; and (3) that the error affected his substantial rights. United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). If these three elements are satisfied, we have the discretion to remedy the error "if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (quoting Puckett, 556 U.S. at 135).


         Under USSG § 2L1.2(b)(1)(C), a district court must increase a defendant's offense level by eight if the defendant has previously been deported after a conviction for an aggravated felony. "Aggravated felony" has the meaning given that term at 8 U.S.C. § 1101(a)(43), which contains a lengthy list of offenses and categories of offenses. The Government argues that Guillen-Cruz's prior conviction under 22 U.S.C. § 2778 qualifies as an aggravated felony either under 8 U.S.C. § 1101(a)(43)(C), defining aggravated felony as "illicit trafficking in firearms, " "destructive devices, " or "explosive materials, " or under § 1101(a)(43)(E)(ii), defining aggravated felony as an offense described in 18 U.S.C. § 924(b).


         When considering whether a defendant's prior conviction constitutes an aggravated felony, "courts use what has become known as the 'categorical approach': They compare the elements of the statute forming the basis of the defendant's conviction with the elements of the 'generic' crime-i.e., the offense as commonly understood." Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). However, "[i]f the statute of conviction defines multiple offenses, at least one of which does not describe an aggravated felony, we apply a modified categorical approach." Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006). This modified categorical approach allows for examination of specified documents to determine under which subsection of a divisible statute the individual was convicted. Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005). For guilty plea convictions, this "may include consideration of the 'charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.'" Id. (quoting Shepard v. United States, 544 U.S. 13, 20-21 (2005)). Usually, courts must first determine whether to apply the categorical or modified categorical approach. See generally Mathis v. United States, 136 S.Ct. 2243 (2016). However, because Guillen-Cruz's prior offense is not an aggravated felony under either approach, we pretermit deciding which approach is applicable.[2]



         Guillen-Cruz's sentence was enhanced based on a violation of 22 U.S.C. § 2778(b)(2) and (c), which prohibit the willful export of articles on the Munitions List, 22 C.F.R. § 121.1, without a license. Guillen-Cruz argues that his conviction is not an aggravated felony because he was convicted of exporting high-capacity rifle magazines, which he contends is conduct that does not fall under the definition of aggravated felony at 8 U.S.C. § 1101(a)(43)(C). The Government does not argue to the contrary, instead asserting that Guillen-Cruz cannot meet his ...

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