United States v. Daniel Alvarez-Gutierrez

394 F.3d 1241 UNITED STATES of America, Plaintiff-Appellee, v. Daniel ALVAREZ-GUTIERREZ, Defendant-Appellant. No. 04-10241. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 3, 2004. Filed January 14, 2005. John D. Kaufmann, Tucson, AZ, for the defendant-appellant. Bruce M. Ferg, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-03-02064-JMR. Before: REINHARDT, THOMPSON, and BERZON, Circuit Judges. THOMPSON, Circuit Judge: 1 The defendant-appellant Daniel Alvarez-Gutierrez pleaded guilty to illegal entry after deportation in violation of 8 U.S.C. § 1326 (2003). In imposing sentence, the district court enhanced Alvarez-Gutierrez's base offense level by eight levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C) (2003), which provides for such an increase when a defendant was previously deported after conviction of an "aggravated felony." 2 Alvarez-Gutierrez had been previously deported after conviction of statutory sexual seduction, a gross misdemeanor under Nevada state law. The district court determined…

The defendant-appellant Daniel Alvarez-Gutierrez pleaded guilty to illegal entry after deportation in violation of 8 U.S.C. § 1326 (2003). In imposing sentence, the district court enhanced Alvarez-Gutierrez’s base offense level by eight levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C) (2003), which provides for such an increase when a defendant was previously deported after conviction of an “aggravated felony.”

Alvarez-Gutierrez had been previously deported after conviction of statutory sexual seduction, a gross misdemeanor under Nevada state law. The district court determined that this misdemeanor conviction constituted “sexual abuse of a minor” for purposes of applying the Sentencing Guidelines, and thus was a conviction of an “aggravated felony” under 8 U.S.C. § 1101 (a)(43)(A) (2003).

The district court also classified Alvarez-Gutierrez’s state misdemeanor offense as an “aggravated felony” under 8 U.S.C. § 1101 (a)(43)(F) (2003), which defines “aggravated felony” as “a crime of violence ... for which the term of imprisonment [is] at least one year.”

Alvarez-Gutierrez appeals his sentence, contending that the district court wrongly enhanced his base offense level by classifying…

concurring.

I am compelled by Gonzalez-Tamariz to join in Judge Thompson’s opinion for the court. If “aggravated felony” includes misdemeanors for the purposes of 8 U.S.C. § 1101 (a)(43)(G) as it does under the law of our circuit and others, it certainly includes misdemeanors for the purposes of 8 U.S.C. § 1101 (a)(43)(A). Indeed it necessarily includes misdemeanors for the purposes of all the sub-sections of 8 U.S.C. § 1101 (a)(43).

Judge Berzon’s dissent in Gonzalez-Tamariz makes sense to me: A felony is a felony, and a misdemeanor is not. That is elementary. We are now, however, as Judge Berzon acknowledges, past that point. For purposes of our often incoherent and senseless federal sentencing policies, a “felony” can include a “misdemean- or.” Worse, an egregious felony, i.e. ari “aggravated felony,” can include a misdemeanor. One would think that there would be some limit to the abuse of the English language by lawmakers.' Apparently not. Still, we must follow the law, and our circuit is in line with all the others when we hold that a misdemeanor can constitute an aggravated felony for the purposes of 8 U.S.C. § 1101 (a)(43).

To hold, as Judge Berzon would, that because,…

dissenting.

In Leocal v. Ashcroft, — U.S. —, 125 S.Ct. 377 , 160 L.Ed.2d 271 (2004), handed down six days after argument in this case, the Supreme Court considered the meaning of 18 U.S.C. § 16 , which reads as follows:

The term “crime of violence” means—

The Court held that, in ascertaining whether driving under the influence (DUI) is a “crime of violence” as defined by 18 U.S.C. § 16 , “we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.’ ” Id. at 383 . Leocal thus underscores that courts ordinarily should interpret statutory language defining what a certain term “means” by paying some attention to the term being defined.

Prior to Leocal , this court examined whether a misdemeanor — -that is, a crime for which the maximum sentence is one year or less — can be an “aggravated felony” for purposes of 8 U.S.C. § 1101 (a)(43). The structure of § 1101(a)(43) is precisely the same as 18 U.S.C. § 16 : it specifies a term describing certain crimes — here, “aggravated felony” — and then states what that term “means.” The term being defined, in plain language, describes a “felony” that is “aggravated.” “Felony” has an established legal…