United States v. Fidel Luna-Madellaga

315 F.3d 1224 UNITED STATES of America, Plaintiff-Appellee, v. Fidel LUNA-MADELLAGA, Defendant-Appellant. No. 02-10157. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 6, 2002. Filed January 15, 2003. Michael K. Powell, Assistant Federal Public Defender, Reno, NV, for the defendant-appellant. Ronald C. Rachow, Assistant United States Attorney, Reno, NV, for the plaintiff-appellee. Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, Chief District Judge, Presiding. D.C. No. CR-01-00087-HDM. Before: RYMER, THOMAS and SILVERMAN, Circuit Judges. Opinion by Judge RYMER; Dissent by Judge THOMAS. RYMER, Circuit Judge. 1 Fidel Luna-Madellaga appeals from the 78-month sentence imposed following his guilty plea conviction for unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326 (a). The question presented here is whether Luna-Madellaga is subject to the enhanced penalty provided by § 1326(b)(2) for "removal [that] was subsequent to a conviction for commission of an aggravated felony," where the removal that followed such a conviction was accomplished through reinstatement of a prior removal order…

Opinion by Judge RYMER; Dissent by Judge THOMAS.

Fidel Luna-Madellaga appeals from the 78-month sentence imposed following his guilty plea conviction for unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326 (a). The question presented here is whether Luna-Madellaga is subject to the enhanced penalty provided by § 1326(b)(2) for “removal [that] was subsequent to a conviction for commission of an aggravated felony,” where the removal that followed such a conviction was accomplished through reinstatement of a prior removal order pursuant to 8 U.S.C. § 1231 (a)(5). We join the Fifth Circuit in concluding that the enhancement applies to removal that is pursuant to a reinstated order. 1 Having jurisdiction, we affirm.

I

Luna-Madellaga was first removed 2 from the United States in August 1995 after being convicted on charges of carrying a concealed weapon. He reentered the country illegally, and was removed in January 1996 by reinstatement of the 1995 removal order pursuant to 8 U.S.C. § 1231 (a)(5). Section 1231(a)(5) provides:

8 U.S.C. § 1231 (a)(5).

After this, he reentered illegally again and was convicted of assault with a deadly weapon in July 1996. The 1995…

dissenting:

The salient question in this case is whether the word “removal” in 8 U.S.C. § 1326 (b)(2) refers to a “removal” as that term is used in immigration law or whether Congress used it in its colloquial sense, namely as a “physical removal.” It is not a trivial inquiry, because the answer dictates whether Luna-Madellaga, and others similarly situated will be subject to a tenfold increase in the maximum punishment for the crime at issue. Because the plain language of the statute, its structure, and its legislative history clearly indicate that Congress meant “removal” in its technical sense, I cannot agree with the government’s statutory construction. Thus, I must respectfully dissent.

I

“In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 , 108 S.Ct. 1811 , 100 L.Ed.2d 313 (1988) (citations omitted). “[Statutory language must always be read in its proper context.” McCarthy v. Bronson, 500 U.S. 136, 139 , 111 S.Ct. 1737 , 114 L.Ed.2d 194 (1991). Thus, some historical perspective is important to the…