UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________
No. 99-20784 Summary Calendar _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JORGE LUIS TERRAZAS-BARRON, also known as Jorge Terrazas,
Defendant-Appellee. _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (H-99-CR-91-ALL) _________________________________________________________________
June 23, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Jorge Luis Terrazas-Barron pleaded guilty to illegal re-entry
into the United States following his earlier deportation, in
violation of 8 U.S.C. § 1326(a). Because Terrazas’ deportation
followed his 1995 Texas conviction for possession of more than 50
pounds of marijuana, the Probation Office recommended that
Terrazas’ base offense level be increased by 16 levels, pursuant to
U.S.S.G. § 2L1.2(b)(1)(A), based on Terrazas’ prior “aggravated
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. felony”. This increase would have given Terrazas a Sentencing
Guideline imprisonment range of 46 to 57 months. However, the
district court sustained Terrazas’ objection to this proposed
increase, increased the offense level by only four levels under §
2L1.2(b)(1)(B), and sentenced him to 16 months in prison. The
Government appeals the sentence.
In a footnote in his brief, quoting United States v. Riggins,
68 F.3d 479, 1995 WL 610333, at *2 (8th Cir. 1995) (unpublished;
dismissing Government’s cross-appeal of sentence based on
Government’s failure to provide proof of authorization for appeal),
Terrazas asserts that “18 U.S.C. § 3742(b) arguably requires the
United States to provide this Court with proof of the ‘personal
approval of the Attorney General, Solicitor General, or a deputy
solicitor general designated by the Solicitor General’ authorizing
the appeal by the United States Attorney’s office”.
After Terrazas’ brief was filed, our court, in United States
v. Thibodeaux, ___ F.3d ___, 2000 WL 562191 (5th Cir. 8 May 2000),
dismissed the Government’s appeal of a sentence. Declining to
develop “any bright-line rules” for demonstrating compliance with
§ 3742(b), our court held dismissal was appropriate because the
Government failed to respond to Thibodeaux’s contention that the
appeal should be dismissed for failure to demonstrate compliance
with § 3742(b). Id. at *2. On 17 May, Terrazas cited Thibodeaux,
pursuant to FED. R. APP. P. 28(j).
2 Unlike Thibodeaux, Terrazas does not explicitly seek dismissal
of the Government’s appeal. Instead, he merely notes that §
3742(b) arguably requires the Government to furnish proof of its
authorization for the appeal. As our court noted in Thibodeaux, §
3742(b) “does not mention that the approval must be in writing or
that approval must be filed in the record of the case on appeal”.
Id. Moreover, on 23 May, in response to Terrazas’ Rule 28(j)
submission, the Government provided a copy of a February 2000
memorandum from the Office of the Solicitor General authorizing
this appeal. Under these circumstances, and in the light of
Thibodeaux’s declining to establish a bright-line rule, Thibodeaux
does not mandate dismissal.
The Government contends that Terrazas’ 1995 Texas marijuana-
possession conviction was an “aggravated felony” for purposes of
the “aggravated felony” enhancement set forth in § 2L1.2(b)(1)(A);
and that the district court was bound by United States v. Hinojosa-
Lopez, 130 F.3d 691 (5th Cir. 1997), to conclude as much. We
review de novo a district court’s legal interpretation of the
Sentencing Guidelines. E.g., United States v. Rodriguez, 60 F.3d
193, 195 (5th Cir.), cert. denied, 516 U.S. 1000 (1995).
In Hinojosa-Lopez, the defendant asserted that his Texas
felony conviction for “aggravated unlawful possession of [more than
50 but less than 200 pounds of] marijuana” was not an “aggravated
felony”, as that term is used in § 2L1.2(b)(2) (1995) (the
3 predecessor of § 2L1.2(b)(1)(A) in the 1998 Guidelines, applicable
here), because the same crime was only a misdemeanor under the
corresponding federal statute, 21 U.S.C. § 844(a). Hinojosa-Lopez,
130 F.3d at 692-93, 694. Our court rejected the defendant’s
contention, reasoning that the state conviction was an “aggravated
felony” if “(1) the offense was punishable under the Controlled
Substances Act and (2) it was a felony” under applicable state law.
Id. at 694. “Aggravated possession of marijuana is a felony under
Texas law.” Id. (citing TEX. HEALTH & SAFETY CODE ANN. § 481.121
(Vernon 1992); Young v. State, 922 S.W.2d 676, 676 (Tex. Ct. App.
1996)).
In 1993, the Texas marijuana-possession statute, § 481.121,
was amended, so that possession of between 50 and 2000 pounds of
marijuana became a second-degree felony. See Hinojosa-Lopez, 130
F.3d at 694 n.2 (citing § 481.121(b)(5) (Vernon Supp. 1997)).
Although the offense is no longer considered an “aggravated” felony
in Texas, this has no bearing on whether it should be considered an
“aggravated felony” for purposes of § 2L1.2(b)(1)(A). The salient
fact is that possession of more than 50 pounds of marijuana remains
a “felony” under Texas law that is punishable by a sentence of two
to 20 years in prison. See id. at 694 & n.2. We conclude that
Hinojosa-Lopez governs the factual circumstances of the §
2L1.2(b)(1)(A) issue in Terrazas’ case.
Terrazas has not explicitly disputed that, as a matter of
4 statutory construction, his challenge to the § 2L1.2(b)(1)(A)
increase is foreclosed by Hinojosa-Lopez. See United States v.
Garcia Abrego, 141 F.3d 142, 151 n.1 (5th Cir.) (“in the absence of
any intervening Supreme Court or en banc circuit authority that
conflicts” with the panel decision in question, this court is bound
by the panel decision), cert. denied, 525 U.S. 878 (1998). He
contends, however, that, under the constitutional “rule of lenity,”
his objection to the increase presents an issue of the first
impression. This contention is erroneous.
The rule of lenity fosters the constitutional due-process
principle “that no individual be forced to speculate, at peril of
indictment, whether his conduct is prohibited.” Dunn v. United
States, 442 U.S. 100, 112 (1979). “The rule of lenity ... applies
only when, after consulting traditional canons of statutory
construction, [a court is] left with an ambiguous statute.” United
States v.
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________
No. 99-20784 Summary Calendar _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JORGE LUIS TERRAZAS-BARRON, also known as Jorge Terrazas,
Defendant-Appellee. _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (H-99-CR-91-ALL) _________________________________________________________________
June 23, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Jorge Luis Terrazas-Barron pleaded guilty to illegal re-entry
into the United States following his earlier deportation, in
violation of 8 U.S.C. § 1326(a). Because Terrazas’ deportation
followed his 1995 Texas conviction for possession of more than 50
pounds of marijuana, the Probation Office recommended that
Terrazas’ base offense level be increased by 16 levels, pursuant to
U.S.S.G. § 2L1.2(b)(1)(A), based on Terrazas’ prior “aggravated
* 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. felony”. This increase would have given Terrazas a Sentencing
Guideline imprisonment range of 46 to 57 months. However, the
district court sustained Terrazas’ objection to this proposed
increase, increased the offense level by only four levels under §
2L1.2(b)(1)(B), and sentenced him to 16 months in prison. The
Government appeals the sentence.
In a footnote in his brief, quoting United States v. Riggins,
68 F.3d 479, 1995 WL 610333, at *2 (8th Cir. 1995) (unpublished;
dismissing Government’s cross-appeal of sentence based on
Government’s failure to provide proof of authorization for appeal),
Terrazas asserts that “18 U.S.C. § 3742(b) arguably requires the
United States to provide this Court with proof of the ‘personal
approval of the Attorney General, Solicitor General, or a deputy
solicitor general designated by the Solicitor General’ authorizing
the appeal by the United States Attorney’s office”.
After Terrazas’ brief was filed, our court, in United States
v. Thibodeaux, ___ F.3d ___, 2000 WL 562191 (5th Cir. 8 May 2000),
dismissed the Government’s appeal of a sentence. Declining to
develop “any bright-line rules” for demonstrating compliance with
§ 3742(b), our court held dismissal was appropriate because the
Government failed to respond to Thibodeaux’s contention that the
appeal should be dismissed for failure to demonstrate compliance
with § 3742(b). Id. at *2. On 17 May, Terrazas cited Thibodeaux,
pursuant to FED. R. APP. P. 28(j).
2 Unlike Thibodeaux, Terrazas does not explicitly seek dismissal
of the Government’s appeal. Instead, he merely notes that §
3742(b) arguably requires the Government to furnish proof of its
authorization for the appeal. As our court noted in Thibodeaux, §
3742(b) “does not mention that the approval must be in writing or
that approval must be filed in the record of the case on appeal”.
Id. Moreover, on 23 May, in response to Terrazas’ Rule 28(j)
submission, the Government provided a copy of a February 2000
memorandum from the Office of the Solicitor General authorizing
this appeal. Under these circumstances, and in the light of
Thibodeaux’s declining to establish a bright-line rule, Thibodeaux
does not mandate dismissal.
The Government contends that Terrazas’ 1995 Texas marijuana-
possession conviction was an “aggravated felony” for purposes of
the “aggravated felony” enhancement set forth in § 2L1.2(b)(1)(A);
and that the district court was bound by United States v. Hinojosa-
Lopez, 130 F.3d 691 (5th Cir. 1997), to conclude as much. We
review de novo a district court’s legal interpretation of the
Sentencing Guidelines. E.g., United States v. Rodriguez, 60 F.3d
193, 195 (5th Cir.), cert. denied, 516 U.S. 1000 (1995).
In Hinojosa-Lopez, the defendant asserted that his Texas
felony conviction for “aggravated unlawful possession of [more than
50 but less than 200 pounds of] marijuana” was not an “aggravated
felony”, as that term is used in § 2L1.2(b)(2) (1995) (the
3 predecessor of § 2L1.2(b)(1)(A) in the 1998 Guidelines, applicable
here), because the same crime was only a misdemeanor under the
corresponding federal statute, 21 U.S.C. § 844(a). Hinojosa-Lopez,
130 F.3d at 692-93, 694. Our court rejected the defendant’s
contention, reasoning that the state conviction was an “aggravated
felony” if “(1) the offense was punishable under the Controlled
Substances Act and (2) it was a felony” under applicable state law.
Id. at 694. “Aggravated possession of marijuana is a felony under
Texas law.” Id. (citing TEX. HEALTH & SAFETY CODE ANN. § 481.121
(Vernon 1992); Young v. State, 922 S.W.2d 676, 676 (Tex. Ct. App.
1996)).
In 1993, the Texas marijuana-possession statute, § 481.121,
was amended, so that possession of between 50 and 2000 pounds of
marijuana became a second-degree felony. See Hinojosa-Lopez, 130
F.3d at 694 n.2 (citing § 481.121(b)(5) (Vernon Supp. 1997)).
Although the offense is no longer considered an “aggravated” felony
in Texas, this has no bearing on whether it should be considered an
“aggravated felony” for purposes of § 2L1.2(b)(1)(A). The salient
fact is that possession of more than 50 pounds of marijuana remains
a “felony” under Texas law that is punishable by a sentence of two
to 20 years in prison. See id. at 694 & n.2. We conclude that
Hinojosa-Lopez governs the factual circumstances of the §
2L1.2(b)(1)(A) issue in Terrazas’ case.
Terrazas has not explicitly disputed that, as a matter of
4 statutory construction, his challenge to the § 2L1.2(b)(1)(A)
increase is foreclosed by Hinojosa-Lopez. See United States v.
Garcia Abrego, 141 F.3d 142, 151 n.1 (5th Cir.) (“in the absence of
any intervening Supreme Court or en banc circuit authority that
conflicts” with the panel decision in question, this court is bound
by the panel decision), cert. denied, 525 U.S. 878 (1998). He
contends, however, that, under the constitutional “rule of lenity,”
his objection to the increase presents an issue of the first
impression. This contention is erroneous.
The rule of lenity fosters the constitutional due-process
principle “that no individual be forced to speculate, at peril of
indictment, whether his conduct is prohibited.” Dunn v. United
States, 442 U.S. 100, 112 (1979). “The rule of lenity ... applies
only when, after consulting traditional canons of statutory
construction, [a court is] left with an ambiguous statute.” United
States v. Shabani, 513 U.S. 10, 17 (1994) (emphasis added). In
other words, it applies “only if after a review of all applicable
sources of legislative intent the statute remains truly ambiguous”.
United States v. Cooper, 966 F.2d 936, 944 (5th Cir.) (internal
quotation marks and citation omitted), cert. denied, 506 U.S. 980
(1992); see also Albernaz v. United States, 450 U.S. 333, 342
(1981) (“The rule comes into operation at the end of the process of
construing what Congress has expressed, not at the beginning as an
overriding consideration of being lenient to wrongdoers.” (internal
5 quotation marks and citation omitted)). Accordingly, the rule of
lenity is a rule of statutory construction, see Bifulco v. United
States, 447 U.S. 381, 387 (1980); United States v. Brito, 136 F.3d
397, 408 (5th Cir.), cert. denied, 523 U.S. 1128, 524 U.S. 962, 525
U.S. 867 (1998), rather than a separate constitutional framework
for raising claims.
In declining to follow Hinojosa-Lopez, the district court
neither relied on the rule of lenity nor attempted to distinguish
Hinojosa-Lopez. Instead, the court relied on an alternative
interpretation of the term “aggravated felony” by the Board of
Immigration Appeals (“BIA”) in a BIA Interim Decision, in lieu of
this court’s interpretation of the same term in nearly identical
factual circumstances. Accordingly, we VACATE and REMAND for
resentencing in accordance with Hinojosa-Lopez.
VACATED and REMANDED