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United States v. Enrique-Ascencio

United States Court of Appeals, Fifth Circuit

May 19, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
JESUS ENRIQUE-ASCENCIO, Defendant-Appellant

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

          Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.

          JAMES E. GRAVES, JR., Circuit Judge

         Jesus 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.

         I. BACKGROUND

         On 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.

         The PSR 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."

         Enrique-Ascencio 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.[1]

         The 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 appeal followed.

         II. DISCUSSION

         Enrique-Ascencio 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 turn.

         A. Work Release as a Sentence of Imprisonment

         Enrique-Ascencio 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 novo." Id.

         1. Section ...


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