United States v. Fermin Rodriguez-Bernal

Case: 14-10287 Document: 00512992584 Page: 1 Date Filed: 04/03/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 14-10287 FILED

April 3, 2015

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

FERMIN RODRIGUEZ-BERNAL,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:

Fermin Rodriguez-Bernal was sentenced to two years of imprisonment

after being convicted of possession with intent to distribute less than one gram

of heroin under Texas Health and Safety Code Section 481.112(b). After he

had served ten months, his sentence was discharged, and he was released to

immigration detainers and removed to El Salvador. He later pleaded guilty of

illegally reentering the United States in violation of 8 U.S.C. §§ 1326(a) and

(b)(2). The district court sentenced him to seventy months of imprisonment

after applying, inter alia, a sixteen-level enhancement under U.S. Sentencing

Guidelines (“U.S.S.G.”) § 2L1.2(b)(1)(A)(i) for the possession-with-intent

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No. 14-10287

offense. Rodriguez-Bernal maintains that it was error to apply the

enhancement and that the sentence is substantively unreasonable. We affirm.

I.

Because Rodriguez-Bernal “preserved his objection to the enhancement,

‘[w]e review the district court’s interpretation and application of the sentencing

guidelines de novo and its findings of fact for clear error.’” United States v.

Martinez-Lugo, No. 13-40924, 2015 U.S. App. LEXIS 5032, at *4 (5th Cir.

Mar. 27, 2015) (per curiam) (alteration in original) (quoting United States v.

Baker, 742 F.3d 618, 620 (5th Cir. 2014)). “We analyze the Guidelines under

the rules that apply to the interpretation of statutes. The text of the guideline

is the starting point in the analysis; the commentary is considered authori-

tative. We use ‘a plain-meaning approach’ in our interpretation of the Sen-

tencing Guidelines.” United States v. Mendez-Villa, 346 F.3d 568, 570 (5th Cir.

2003) (per curiam) (citations omitted).

II.

Section 2L1.2(b)(1)(A)(i) provides that the offense level for unlawfully

entering the United States shall be increased by sixteen if, inter alia, the defen-

dant previously was deported after “a conviction for a felony that is a drug

trafficking offense for which the sentence imposed exceeded 13 months . . . .”

“‘Sentence imposed’ has the meaning given the term ‘sentence of imprison-

ment’ in Application Note 2 and subsection (b) of § 4A1.2 . . . .” § 2L1.2 cmt.

n.1(B)(vii). Section 4A1.2(b)(1), in turn, defines “sentence of imprisonment” as

“a sentence of incarceration and refers to the maximum sentence imposed.”

The “maximum sentence imposed” can differ from the time actually served:

“[T]he length of a sentence of imprisonment is the stated maximum . . . in the

case of an indeterminate sentence of one to five years, the stated maximum is

five years . . . . [C]riminal history points are based on the sentence pronounced,

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not the length of time actually served.” § 4A1.2 cmt. n.2. But there is an

important exception: “If part of a sentence of imprisonment was suspended,

‘sentence of imprisonment’ refers only to the portion that was not suspended.”

§ 4A1.2(b)(2).

A.

Rodriguez-Bernal avers that his “sentence of imprisonment” was less

than thirteen months because he was discharged after serving ten. Equating

“discharged” with “suspended” under § 4A1.2(b)(2), he claims that the district

court erred by counting the time during which his sentence was discharged

toward the “sentence of imprisonment.” He is mistaken for two independent

reasons. First, his discharged sentence does not qualify as a suspended sen-

tence under § 4A1.2(b)(2) because it was not suspended by a court. Second, a

discharged sentence under Texas law is not equivalent to a suspended

sentence.

1.

Only a court can suspend a sentence for purposes of the § 4A1.2(b)(2)

exception. “The defining characteristic of a ‘suspended sentence’ under the . . .

Guidelines is that it is suspended by a judicial officer, rather than an executive

agency.” 1 This decision accords with all circuits to have considered the issue.

In United States v. Harris, 237 F.3d 585, 587–88 (6th Cir. 2001), the

1 United States v. Garcia-Gomez, 380 F.3d 1167, 1172 (9th Cir. 2004) (refusing to

recognize the release of a defendant by a correctional administrator as a “suspension” under

§ 4A1.2(b)(2)); see also Thomas W. Hutchison et al., Federal Sentencing Law & Practice

§ 2L1.2 cmt. 8(c)(ii) (2015 ed.) (“Sentence length is determined by what a court has pro-

nounced; if the prison term imposed exceeds 13 months, then the ‘sentence imposed exceeded

13 months,’ even if a subsequent administrative action . . . results in time served of less than

13 months.”); Roger W. Haines, Jr., et al., Federal Sentencing Guidelines Handbook: Text and

Analysis § 4A1.2 ¶ (b)(2) (2014–2015 ed.) (“Where defendant is sentenced to imprisonment

but later paroled to avoid prison overcrowding, his sentence counts and is not treated as if it

were ‘suspended.’”).

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defendant was sentenced to three years but was paroled after only eighteen

days because of prison overcrowding. The court held that his criminal history

score should be based on the entire three-year sentence because administrative

decisions to parole do not qualify as a “suspension.” 2 “In reaching that result,

the court relied on U.S.S.G. Ch. 7 Pt. A[(2)], which describe[s] the power for-

merly vested in federal courts (prior to the implementation of the federal sen-

tencing guidelines) to suspend the imposition of a sentence of imprisonment

and place a defendant on probation.” Garcia-Gomez, 380 F.3d at 1172.

Because Chapter 7 refers “to a court’s authority to suspend sentences . . . the

term ‘suspended’ [in § 4A1.2(b)(2)] refer[s] only to judicial suspensions.” Id.

The same conclusion was reached in United States v. Gajdik, 292 F.3d

555, 556 (7th Cir. 2002). There the defendant had been sentenced to five years

of imprisonment but was placed into a “boot camp” and released by the state

department of corrections after only 121 days. The court recognized that

“under 18 U.S.C. § 3651, only a court, not an executive agency, could suspend

a sentence,” and release from the boot camp “did not operate to ‘suspend’ the

remainder of his five-year sentence [under 4A1.2(b)(2)] . . . . Rather, the pro-

cedure more closely resembles a pardon or commutation by the executive.” 3

The court in United States v. Chavez-Diaz, 444 F.3d 1223, 1226–27 (10th

Cir. 2006), adopted the same reasoning, concluding that the decision by the

INS to deport a defendant twenty-six days into his four-to-six-year sentence

2Harris, 237 F.3d at 589 (“[I]n using the term ‘suspended sentence’ in the guidelines,

Congress was referring to the authority of a court to suspend a sentence, not a government

agency. Clearly, Harris’s administrative parole . . . was ordered by the Tennessee Depart-

ment of Corrections rather than the state court that sentenced Harris to the concurrent three-

year terms of imprisonment. Hence, Harris’s sentences were not ‘suspended.’”).

3 Gajdik, 292 F.3d at 558; accord United States v. Womack, 610 F.3d 427, 430–32 (7th

Cir. 2010) (“[T]he decision whether or not to accept an inmate into the [boot camp] program

is beyond the purview of judicial officers. Primarily for that reason, [early release after] par-

ticipation in the program is unlike a suspended sentence.”).

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did not suspend it under § 4A1.2(b)(2). Likewise, in United States v. Hernan-

dez, 27 F. App’x 36, 39 (2d Cir. 2001) (per curiam), the court stated that “‘[s]us-

pension’ [under § 4A1.2(b)(2)] does not, however, refer to time not served

because of the decision of a government agency, here the INS, which deported

[the defendant] prior to the expiration of his sentence; it refers to the judicial

authority of a court.”

This court cited Hernandez favorably in United States v. Guerrero-

Aguilar, No. 01-40525, 2001 WL 1751459, at *2 (5th Cir. Dec. 26, 2001)

(unpublished), stating that “[g]iven the unsettled nature of the issue in this

Circuit, to assume that a sentence suspended by another branch of the

government is not a suspended sentence for the purposes of § 4A1(b)(2) is not

a clear or obvious error.” Furthermore, the Garcia-Gomez court, 380 F.3d at

1173, noted that its “holding is also consistent with . . . United States v. Brooks,

166 F.3d 723 (5th Cir. 1999).” 4

We agree with our sister circuits that Rodriguez-Bernal’s sentence was

not “suspended” under § 4A1.2(b)(2) because “a correctional administrator, not

a judge, made the decision to release [the defendant] prior to the completion of

the term of his sentence.” Garcia-Gomez, 380 F.3d at 1172. The state judg-

ment of conviction shows that the sentencing court did not initially impose a

4 In Brooks the defendant “was sentenced to serve a ten-year term in a ‘special alter-

native incarceration program (boot camp) followed by probation.’” Brooks, 166 F.3d at 726.

He was released from boot camp after less than a year, and the district court counted only

the time he was in boot camp, not the entire ten-year sentence, as the “sentence imposed”

under § 4A1(b)(1). Id. Notably, the government did not challenge the decision not to count

the entire ten-year sentence as part of the “sentence imposed.” The defendant claimed that

his time in boot camp should not be considered as part of the “sentence imposed” because “the

purpose of boot camp is rehabilitation,” and “Texas law treats boot camp as community cor-

rections, not imprisonment.” Id. In affirming, this court “note[d] that under the Texas stat-

ute outlining the boot camp program . . . ‘the judge of the court that imposed the sentence

may suspend further execution of the sentence imposed’ provided the judge is of the opinion

that ‘the person would not benefit from further imprisonment.’” Id. at 726 n.2 (emphasis

added) (quoting TEX. CODE CRIM. PROC. ANN. art. 42.12 § 8 (West Supp. 1997)).

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suspended sentence: Under the heading, “Execution / Suspension of Sentence

(select one),” the court chose the first option, which provides, “The Court

ORDERS Defendant’s sentence EXECUTED,” rather than the second option:

“The Court ORDERS Defendant’s sentence of confinement SUSPENDED.”

Although Texas law authorizes the trial court, after entry of judgment, to

“suspend the imposition of the sentence and place the defendant on community

supervision,” that did not happen here. See TEX. CODE CRIM. PROC. ANN.

art. 42.12, § 3(a). Instead, Rodriguez-Bernal served ten months of the sentence

before it was discharged by the Texas Department of Criminal Justice,

whereupon he was released to immigration detainers and deported.

2.

Rodriguez-Bernal relies exclusively on United States v. Salazar-

Basaldua, 342 F. App’x 985 (5th Cir. 2009) (per curiam), for the proposition

that his discharged sentence qualifies as a suspended sentence under

§ 4A1.2(b)(2). There the defendant had been “convicted in Kentucky state court

of trafficking a controlled substance and sentenced to a maximum term of

seven years’ imprisonment,” but the sentencing court “conditionally dis-

charged” the sentence. Id. at 986. Salazar-Basaldua later “pleaded guilty of

unlawfully being present in the United States after deportation in violation of

8 U.S.C. § 1326(a) and (b).” Id. This court held that the district court erred in

applying the sixteen-level enhancement for the trafficking offense under

§ 2L1.2(b)(1)(A)(i) because, “[c]onditionally-discharged sentences are treated

as unsupervised probation under Kentucky law”—a proposition for which

there is much support in Kentucky caselaw. 5 Any reliance on Salazar-

5 Salazar-Basaldua, 342 F. App’x at 987. See, e.g., Commonwealth v. Marshall,

345 S.W.3d 822, 823 n.1 (Ky. 2011) (“Probation and conditional discharge are closely related

concepts with their main difference being that a probationer is supervised by the probation

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Basaldua is misplaced because a discharged sentence under Texas law is not

functionally equivalent to a suspended sentence.

The guidelines do not define “suspended sentence,” but “[s]uspended

sentences are usually imposed in conjunction with probation so that if a defen-

dant commits another crime or violates a condition of probation, his suspended

sentence is activated.” 6 Under our “plain meaning” approach, “[t]he text of the

guideline is the starting point in the analysis” and the guidelines use the word

“suspended”—a word with specific legal meaning—not the word “discharged”—

a word with a different legal meaning. Mendez-Villa, 346 F.3d at 570. In the

past, this court has carefully construed the words in the guidelines, declining

to read in new exceptions to sentencing enhancements. 7

office, whereas a conditionally discharged person is unsupervised.”); Pedigo v. Common-

wealth, 644 S.W.2d 355, 358 (Ky. Ct. App. 1982) (“For all purposes, except supervision, or the

lack thereof, there is no difference between conditional discharge and probation.”); United

States v. Trammel, 404 F.3d 397, 404 (6th Cir. 2005) (“This Court has held that a term of

conditional discharge, even when imposed in connection with a fine rather than a suspended

jail sentence, is properly considered a term of probation and therefore should be included in

criminal history calculations under the Guidelines.”); United States v. Rollins, 378 F.3d 535,

538–40 (6th Cir. 2004) (reaching same conclusion).

6 United States v. Perez-Macias, 335 F.3d 421, 426 (5th Cir. 2003); see Alabama v.

Shelton, 535 U.S. 654, 662 (2002) (“A suspended sentence is a prison term imposed for the

offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for

the probation violation, but for the underlying offense.”); Gajdik, 292 F.3d at 558 (“By com-

mon definition a ‘suspended sentence’ is a definite sentence postponed so that the defendant

is not required to serve his time in prison unless he commits another crime or violates some

court-imposed condition during a probationary period.”); accord Black’s Law Dictionary 1570

(10th ed. 2009) (A suspended sentence is “[a] sentence postponed so that the convicted crim-

inal is not required to serve time unless he or she commits another crime or violates some

other court-imposed condition. A suspended sentence, in effect, is a form of probation.”).

7 In 2002 the commentary to the guidelines stated that “[i]f all or any part of a sentence

of imprisonment was probated, suspended, deferred, or stayed, ‘sentence imposed’ refers only

to the portion that was not probated, suspended, deferred, or stayed.” § 2L1.2 cmt. n.1(A)(iv).

In Mendez-Villa, the defendant claimed that his “sentence imposed” did not exceed thirteen

months because he was released on parole after serving four months of a five-year sentence.

We rejected that claim, explaining that the Guidelines did “not include parole in its list of

exceptions” to the rule that the sentence pronounced is the relevant sentence for purposes of

section 2L1.2’s enhancements. Mendez-Villa, 346 F.3d at 569–70. The First, Second, Third,

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Rodriguez-Bernal offers no authority for the proposition that his dis-

charge to an immigration detainer functioned like a suspended sentence.

Texas courts use the term “discharge” differently from “suspension” or “pro-

bation.” In Ex parte Gonzalez, 402 S.W.3d 843, 844 (Tex. App.—Corpus Christi

2013, no pet.), the court explained that the “trial court suspended Gonzalez’s

sentence of ten years in [prison] . . . and placed him on community supervision.”

The court later “terminated [the] suspended sentence . . . and discharged Gon-

zalez.” 8 Those cases suggest that under Texas law a discharged sentence is

unaccompanied by any continuing obligation, distinguishing the case at hand

from the conditional discharge in Salazar-Basaldua. 9

Rodriguez-Bernal relies on dictum in Salazar-Basaldua, 342 F. App’x

Eighth, and Tenth Circuits used similar reasoning to reject arguments that defendants who

were paroled and deported after serving less than thirteen months were improperly given a

sixteen-level enhancement. See United States v. Carrasco-Mateo, 389 F.3d 239, 243–46 (1st

Cir. 2004); United States v. Garibay-Anguiano, 90 F. App’x 338, 341 (10th Cir. 2004); United

States v. Frias, 338 F.3d 206, 207–08 (3d Cir. 2003); United States v. Rodriguez–Arreola, 313

F.3d 1064, 1065–67 (8th Cir. 2002); United States v. Valdovinos-Soloache, 309 F.3d 91, 93–

95 (2d Cir. 2002) (per curiam).

8 Id. Similarly, in Moreno v. State, No. 07-03-0505-CR, 2005 WL 2839747, at *3 (Tex.

App.—Amarillo Oct. 28, 2005, no pet.) (not designated for publication), the trial court “sus-

pended appellant’s sentence for a period of two years and placed him on probation.” The

appellate court stated that “[d]ischarge from probation” would happen “at the end of that

period . . . .” Likewise, in Ex parte Hale, 117 S.W.3d 866, 873 (Tex. Crim. App. 2003), the

court held that “the applicant’s burglary sentence was discharged when his period of super-

vision on that sentence would have expired.” See Ex parte Wrigley, 178 S.W.3d 828, 831 (Tex.

Crim. App. 2005) (“[T]he date a sentence is completed is the date it is served out in full, day-

for-day, until discharge, or the date the defendant makes parole on the original offense.”);

United States v. Memon, 146 F. App’x 709, 709 (5th Cir. 2005) (per curiam) (“The [Texas]

state court order on which Memon relies purports merely to grant him an early discharge

from the probation he was serving on his suspended imprisonment sentence.”).

9 Differentiating between suspended sentences and discharged sentences makes

sense: A suspended sentence can be activated, providing an incentive for the ex-prisoner to

act in a law-abiding manner and thereby mitigating the need for the guidelines to deter

future criminal conduct with the threat of a sentence enhancement. A discharged sentence,

on the other hand, cannot be activated and therefore lacks the incentive of a suspended

sentence. By counting the discharged portion of a sentence as part of the “sentence of impris-

onment,” the guidelines provide such an incentive: a sentence enhancement.

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at 987, in which this court opined that “under [§ 4A1.2(b)(2)], the discharged

portion of a sentence is not part of a ‘sentence of imprisonment.’” Unpublished

cases are not binding precedent, and there is little persuasive value to that

pronouncement—there was no accompanying analysis, nor has Salazar-

Basaldua been cited by any court. Furthermore, it was unnecessary to the

resolution of the case—the holding turned on whether a conditionally dis-

charged sentence under Kentucky law functioned like unsupervised probation,

as discussed above. We decline to adhere to that statement.

III.

Rodriguez-Bernal’s remaining claims are meritless. Citing Moncrieffe v.

Holder, 133 S. Ct. 1678 (2013), he contends that his prior offense—possession

with intent to distribute less than one gram of heroin—was not a drug-

trafficking offense under § 2L1.2. We recently rejected that assertion in

Martinez-Lugo, 2015 U.S. App. LEXIS 5032, at *12−15. Rodriguez-Bernal also

maintains that his seventy-month sentence—at the very bottom of the

guidelines—is substantively unreasonable. “A discretionary sentence imposed

within a properly calculated guidelines range is presumptively reasonable.”

United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (per

curiam). The district court considered the same theories that Rodriguez-

Bernal advances now and found that his sentence was appropriate in light of

“his drug trafficking convictions, his four DUIs, [and] the fact he has already

been removed once from the United States . . . .” Rodriguez-Bernal asks this

panel to reweigh the 18 U.S.C. § 3553(a) factors, but “[a]ppellate review is

highly deferential as the sentencing judge is in a superior position to find facts

and judge their import under § 3553(a) with respect to a particular defendant.”

Id. at 339. The district court did not abuse its sentencing discretion.

The judgment of sentence is AFFIRMED.

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GRAVES, Circuit Judge, dissenting.

I disagree with the majority’s conclusion that a discharged sentence does

not qualify as a suspended sentence under U.S.S.G. § 4A1.2(b)(2). Because I

would conclude that the district court erred by imposing the sixteen-level

increase in Rodriguez-Bernal’s base offense, I respectfully dissent.

Rodriguez asserts that the sixteen-level enhancement under U.S.S.G. §

2L1.2(b)(1)(A)(i) for a prior drug trafficking offense was improper because the

sentence for that offense was discharged after ten months. Section

2L1.2(b)(1)(A)(i) allows the base offense level to be increased by sixteen levels

when the defendant was previously deported after “a drug trafficking offense

for which the sentence imposed exceeded 13 months.” U.S.S.G. §

2L1.2(b)(1)(A)(i). The commentary to Section 2L1.2 refers to U.S.S.G. section

4A1.2(b) and Application Note 2 to define “sentence of imprisonment.” Section

4A1.2 says, in relevant part: “If part of a sentence of imprisonment was

suspended, ‘sentence of imprisonment’ refers only to the portion that was not

suspended.” U.S.S.G. § 4A1.2(b). Rodriguez relies on section 4A1.2 and United

States v. Salazar-Basaldua, 342 F. App’x 985 (5th Cir. 2009), in support of his

assertion that his sentence did not exceed thirteen months.

Though unpublished, Salazar-Basaldua addressed almost an identical

issue. There, Salazar-Basaldua’s sentence of seven years was conditionally

discharged and he was credited with 239 days spent in custody. This court

concluded that the sixteen-level enhancement did not apply because his

sentence was not more than thirteen months. In its analysis, the court did

note that conditional discharges are treated as unsupervised probation under

Kentucky law. Id. at 987. However, more importantly, this court concluded

that “under subsection (2) [of 4A1.2], the discharged portion of a sentence is

not part of a ‘sentence of imprisonment.’” Id.

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The majority here says that “[a]ny reliance on Salazar-Basaldua is

misplaced because a discharged sentence under Texas law is not functionally

equivalent to a suspended sentence.” However, the majority merely offers

some cases that “suggest that under Texas law a discharged sentence is

unaccompanied by any continuing obligation, distinguishing the case at hand

from the conditional discharge in Salazar-Basaldua.”

I disagree with any presumption that state court cases suggesting a

difference in terminology would be more authoritative than a case, even

unpublished, from this court explicitly concluding that “the discharged portion

of a sentence is not part of a ‘sentence of imprisonment.” Salazar-Basaldua,

342 F. App’x at 987. This is also consistent with this court’s previous decision

in United States v. Guerrero-Aguilar, 31 F. App’x 159 (5th Cir. 2001), where we

acknowledged the possibility of such a conclusion on de novo review.

Specifically, this court said:

This Court has not yet addressed whether § 4A1.2(b)(2)

applies to sentences suspended due to deportation, and Guerrero-

Aguilar relies principally on two cases from other circuits, United

States v. Tabaka, 982 F.2d 100 (3d Cir. 1992), and United States v.

Dixon, 230 F.3d 109 (4th Cir. 2000), both of which held that a

suspended sentence should not be counted for the purpose of

tallying criminal history points under § 4A1(b)(2). Neither of these

cases, however, involved a suspension due to deportation and,

perhaps more central to our holding, neither case was decided

under the plain-error standard of review.

Guerrero-Aguilar, 31 F. App’x at *2.

This court said nothing in Salazar-Basaldua to indicate that an

unconditional discharge would somehow be more stringent than a conditional

discharge or that the reason for the discharge is relevant. Regardless of why

Rodriguez-Bernal’s sentence was discharged, the fact that it was discharged

without probation is more akin to his having completed the sentence. Thus,

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the discharge here would, at the very least, be the equivalent of a suspended

sentence.

The majority further concludes that Rodriguez-Bernal’s discharged

sentence does not qualify as a suspended sentence because it was not

suspended by a court. I disagree. We do not have the trial court record from

the previous conviction before us to determine whether the trial court entered

any order regarding the discharge. However, we do have a concession on the

part of the Government establishing that, while Rodriguez-Bernal was serving

his sentence, “an immigration judge ordered him removed.” An immigration

judge is a quasi-judicial officer. See Reno v. Flores, 507 U.S. 292, 308 113 S.Ct.

1439, 123 L.Ed.2d 1 (1993). Regardless of whether the trial court entered any

order regarding the discharge, a judicial officer was responsible for Rodriguez-

Bernal’s discharge. See United States v. Garcia-Gomez, 380 F.3d 1167, 1172

(9th Cir. 2004).

Further, even if there is doubt about whether a discharged sentence

qualifies as a suspended sentence under section 4A1.2(b)(2), the rule of lenity

comes into play. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 284,

98 S.Ct. 566, 54 L.Ed.2d 538 (1978) (“[W]here there is ambiguity in a criminal

statute, doubts are resolved in favor of the defendant.”); Rewis v. United States,

401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971) (“[A]mbiguity

concerning the ambit of criminal statutes should be resolved in favor of

lenity.”); United States v. Reedy, 304 F.3d 358, 367 (5th Cir. 2002)

(“[A]mbiguity should be resolved in favor of lenity.”). Additionally, the rule

applies “not only to interpretations of the substantive ambit of criminal

prohibitions, but also to the penalties they impose.” See Bifulco v. United

States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).

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For these reasons, I would conclude that the district court erred by

imposing the sixteen-level increase in Rodriguez-Bernal’s base offense and I

would vacate and remand for resentencing. Therefore, I respectfully dissent.

13