United States v. Huerta-Gandara

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 8, 1999
• Docket: 98-50948
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-50948 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OSCAR HUERTA-GANDARA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (EP-98-CR-338-ALL-H) _________________________________________________________________

June 3, 1999

Before KING, Chief Judge, JONES and DAVIS, Circuit Judges.

PER CURIAM:*

Oscar Huerta-Gandara pleaded guilty to one count of illegal

re-entry following deportation, in violation of 8 U.S.C. § 1326.

The district court subsequently sentenced appellant to seventy

months of imprisonment. In sentencing Huerta-Gandara, the

district court applied United States Sentencing Guideline

(U.S.S.G.) § 2L1.2(b)(1)(A), which increases a defendant’s

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. offense level by sixteen if the defendant was previously deported

after a conviction for an aggravated felony offense, based on

Huerta-Gandara’s 1993 conviction for burglary of a vehicle in

Texas state court. Huerta-Gandara then filed a motion pursuant

to 18 U.S.C. § 3742 to resentence, based on his argument that his

conviction for burglary of a vehicle did not qualify as an

aggravated felony, as that term is defined in 8 U.S.C.

§ 1101(a)(43)1, because he had not been sentenced to a term of

imprisonment greater than five years.

Huerta-Gandera’s only argument on appeal is that the

district court erred in applying U.S.S.G. § 2L1.2(b) because

there is insufficient evidence that his prior conviction for

burglary of a vehicle qualifies as an aggravated felony. In

support, he points to the first page of the state-court judgment

in his burglary case, which states that his “Punishment and Place

of Confinement” was “NINE (9) YEARS A/P.” He argues that it is

ambiguous from the state-court judgment whether the state court

sentenced him to a term of imprisonment, and therefore that the

district court erred in increasing his offense level pursuant to

under § 2L1.2(b).

The district judge properly rejected Huerta-Gandera’s

contention. Although it is arguably difficult to tell from the

first page of the state-court judgment whether appellant was

1 The definition of aggravated felony was amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 321(a)(3), 110 Stat. 3009, 546, 627- 28 (1997). The parties agree that the pre-amendment definition of aggravated felony applies to this case.

2 sentenced to a term of imprisonment greater than five years, the

second page of the judgment makes clear that he was sentenced to

a term of imprisonment “in the Texas Department of Criminal

Justice - Institutional Division (County Jail) for NINE (9)

YEARS,” and that this sentence was suspended in favor of adult

probation. This language was sufficient for the district court

to conclude that Huerta-Gandera had been sentenced to a term of

imprisonment greater than five years, and thus that the

appellant’s prior conviction was an aggravated felony under

§ 1101(a)(43). See United States v. Vasquez-Balandran, 76 F.3d

648, 651 (5th Cir. 1996) (affirming district court’s application

of § 1101(a)(43) based on that almost-identical language in a

Texas judgment). The district judge thus properly applied the

sixteen-level increase in § 2L1.2(b). Therefore, the judgment of

the district court is AFFIRMED.