from the United States District Court for the Northern
District of Texas
BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
E. GRAVES, JR., Circuit Judge
Enrique-Ascencio pleaded guilty to one count of illegally
reentering the country after a prior removal. He appeals the
16-level sentence enhancement he received under Section 2L1.2
of the federal Sentencing Guidelines for a prior drug
trafficking conviction, contending that this conviction was
not "a drug trafficking offense for which the sentence
imposed exceeded 13 months." In the alternative,
Enrique-Ascencio asks for remand so that the district court
may resentence him under a post-sentencing Guidelines
amendment that would have reduced his total offense level.
For the reasons that follow, we AFFIRM.
November 24, 2015, Enrique-Ascencio pleaded guilty to one
count of illegally reentering the country after a prior
removal in violation of 8 U.S.C. § 1326(a) and (b)(2).
The probation officer who prepared his presentence report
("PSR") recommended that his base offense level be
increased by 16 levels under Section 2L1.2(b)(1)(A), based on
a prior felony drug trafficking offense "for which the
sentence imposed exceeded 13 months." The recommended
enhancement was based on a 2006 California felony conviction
for possession for sale of cocaine. According to the PSR,
Enrique-Ascencio was sentenced for this offense to 120 days
in "the work release program in jail, " followed by
36 months of probation. In April 2008, a probation revocation
hearing was held after Enrique-Ascencio violated the terms of
his probation and he was sentenced to an additional 365 days
in the county jail.
calculated a cumulative sentence of 485 days of imprisonment,
triggering the Section 2L1.2 16-level enhancement. As proof
of the 2006 conviction and sentence, the PSR appended a plea
document for the offense. It indicated that Enrique-Ascencio
desired to enter a guilty plea to the offense with the
understanding that the district attorney had agreed to a
sentence of "120 CJ W/E's. Plea contingent on no
prior felony convictions."
objected to the enhancement, arguing that he had not
sustained a drug trafficking offense for which the sentence
imposed was greater than 13 months. He claimed that serving
his sentence of 120 days through a work release program did
not constitute a "sentence of imprisonment" under
Section 2L1.2(b)(1)(A)(i) and 2L1.2 cmt. n.1(B)(vii), because
he worked each day outside of a jail facility.
Enrique-Ascencio did not dispute that his 365-day sentence of
imprisonment for his subsequent parole violation counts
toward his "sentence imposed" for purposes of the
enhancement. But by his calculation, his sentence was 365
days in total, warranting only a 12-level enhancement.
Enrique-Ascencio also noted that the Government had not
provided a certified copy of the judgment supporting the
enhancement and reserved his right to object on this
additional basis if the Government did not produce a
certified copy by the date of sentencing.
district court overruled Enrique-Ascencio's objections
and adopted the findings in the PSR without change. The court
sentenced Enrique-Ascencio at the bottom of the Guideline
range of 57 to 71 months and credited him for a month of
administrative custody, resulting in a term of imprisonment
of 56 months. It imposed no term of supervised release. This
raises two issues on appeal. First, he argues that the
district court's application of the 16-level enhancement
was error because it was not established that the sentence
imposed for the offense, at least some of which he served
through work release, exceeded 13 months. Second,
Enrique-Ascencio urges remand so that the district court may
resentence him under a Guidelines amendment that became
effective after his sentencing. We address each issue in
Work Release as a Sentence of Imprisonment
appeals the district court's rejection of his objection
to the PSR that his time spent in a work release program
should not be counted toward his "sentence imposed"
for purposes of determining the applicability of Section
2L1.2's 16-level enhancement. Because Enrique-Ascencio
preserved this objection, "we 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,
782 F.3d 198, 201 (5th Cir. 2015) (alteration omitted).
"We review a district court's conclusion that a
prior state conviction constitutes a drug trafficking offense
[for which the sentence imposed exceeded 13 months] de