United States v. Ramos-Garcia

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 13, 1996
• Docket: 96-10235
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-10235 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE GERARDO RAMOS-GARCIA,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas September 5, 1996

Before JONES, DeMOSS and PARKER, Circuit Judges. PER CURIAM:

Appellant Jose Gerardo Ramos-Garcia (“Ramos-Garcia”)

challenges the sentence imposed for his conviction for illegal re-

entry into the United States after deportation. Specifically, he

argues that the district court erred in finding that his Texas

state conviction for burglary of a vehicle was an aggravated felony

for purposes of enhancement pursuant to U.S.S.G. § 2L1.2. Finding

no error, we affirm.

1 TRIAL COURT PROCEEDINGS

Ramos-Garcia was found guilty after a jury trial of one count

of unlawful re-entry into the United States in violation of 8

U.S.C. § 1326. At sentencing the district court, applying U.S.S.G.

§ 2L1.2 (“Unlawfully Entering or Remaining in the United States”),

calculated Ramos-Garcia’s base offense level at 8, enhanced it by

16 levels because of his previous Texas state court conviction for

burglary of a vehicle and established his total offense level at

level 24. Combined with his criminal history category VI, the

resultant sentencing range was 100-120 months.1 The district court

sentenced him to 120 months imprisonment, three years supervised

release and a $50 special assessment.

DISCUSSION

How the Sentencing Guidelines apply to a particular conviction

is a question of law, which this Court reviews de novo. United

States v. Garcia-Rico, 46 F.3d 8, 9 (5th Cir.), cert. denied 115 S.

Ct. 2596 (1995).

U.S.S.G. § 2L1.2 provides a base offense level 8. The

guideline then states that:

If more than one applies, use the greater:

(1) If the defendant previously was deported after a conviction for a felony, other than a felony involving violations of the immigration laws, increase by 4 levels.

(2) If the defendant previously was deported after a conviction for an aggravated felony, increase by 16

1 The resulting guideline range extended upward to 125 months. However, the statutory maximum for this offense capped the sentencing range at 120 months.

2 levels.

U.S.S.G. § 2L1.2(b)(Nov. 1995).

Ramos-Garcia was convicted in Texas state court on June 30,

1994 for the offense of Burglary of a Vehicle. Because the state

of Texas punished Ramos-Garcia’s burglary conviction by imposing a

five years probated sentence and because this Court has ruled that

Burglary of a Vehicle constitutes a crime of violence for purposes

of guideline sentencing, the district court reasoned that Ramos-

Garcia was subject to a 16 level enhancement under U.S.S.G. §

2L1.2(b)(2).

In September 1994, the Texas legislature amended Texas law to

reflect that burglary of a vehicle was no longer a felony offense

in Texas. See TEXAS PENAL CODE ANN. § 30.04 (Vernon 1994). At

sentencing, Ramos-Garcia objected to the treatment of his Texas

burglary conviction as an “aggravated felony” for purposes of

U.S.S.G. § 2L1.2(b), relying on the 1994 change in Texas law. The

district court overruled his objections and imposed the

enhancement.

U.S.S.G. § 2L1.2(b) is silent concerning the effects of

subsequent reclassification of otherwise valid predicate state

convictions when determining possible federal sentencing

enhancements. Ramos-Garcia argues that this silence amounts to an

ambiguity, and therefore the district court should have applied the

Rule of Lenity to his sentencing decision and declined to enhance

the sentence under Guideline § 2L1.2's enhancement provisions.

We find his argument unpersuasive. This Court has recently

3 held that federal law, rather than state law, controls the

interpretation of U.S.S.G. § 2L1.2. United States v. Vasquez-

Balandran, 76 F.3d 648, 650 (5th Cir. 1996). We must therefore

look to federal law to determine whether Ramos-Garcia’s conviction

was for an “aggravated felony.” See id.

The commentary to U.S.S.G. § 2L1.2(b)92) defines “aggravated

felony” as “any crime of violence (as defined in 18 U.S.C. § 16[])

for which the term of imprisonment imposed (regardless of any

suspension of such imprisonment) is at least five years.” § 2L1.2,

comment. (n.7).

The first inquiry, whether Ramos-Garcia’s conviction was for

a crime of violence, has been answered by this Court’s ruling in

United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. 1995).

“Crime of violence” is defined as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16(a) & (b) (1988). This Court unequivocally held that

conviction for burglary of a vehicle under § 30.04 of the pre-1994

Texas Penal Code is a crime of violence as defined in 18 U.S.C. §

16(b).

Second, the term of imprisonment imposed, regardless of any

suspension, must be at least five years. Ramos-Garcia was

sentenced to five years of probation for his burglary of a vehicle

conviction. “Clearly, the Sentencing Commission envisioned [§

4 2L1.2's] applicability to extend to those defendants who actually

are ordered to serve their sentences and also those defendants who

avoid a determined period of incarceration by a process which

suspends serving the term of imprisonment. United States v.

Vasquez-Balandran, 76 F.3d 648, 651 (5th Cir. 1996). Ramos-

Garcia’s five year probation under Texas’s sentencing procedure

fulfils the five year “term of imprisonment imposed” requirement.

See id.

The change in Texas law reclassifying burglary of a vehicle

from a felony to a misdemeanor does not change the nature of the

crime as a crime of violence, nor does it change the five year

probated sentence. Therefore, it does not change the fact that

Ramos-Garcia’s conviction meets the federal definition of

aggravated felony. The sentence imposed by the district court is

AFFIRMED.