United States v. Martin Guillen-Cruz

Case: 16-40131 Document: 00513946154 Page: 1 Date Filed: 04/10/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 16-40131

Fifth Circuit

FILED

April 10, 2017

UNITED STATES OF AMERICA, Lyle W. Cayce

Clerk

Plaintiff - Appellee

v.

MARTIN GUILLEN-CRUZ, also known as Martin Guillen-Martinez,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Defendant-Appellant Martin Guillen-Cruz pleaded guilty to being found

in the United States after a previous deportation in violation of 8 U.S.C.

§ 1326(a) and (b). The probation officer who prepared Guillen-Cruz’s

presentence report (PSR) added eight points to his offense level because he had

a prior conviction for exporting defense articles on the United States Munitions

List without a license in violation of 22 U.S.C. § 2778(b)(2) and (c). The PSR

concluded that Guillen-Cruz’s conviction constituted a prior aggravated felony

for purposes of the United States Sentencing Guidelines (USSG or Guidelines)

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§ 2L1.2(b)(1)(C), 1 as defined in 8 U.S.C. § 1101(a)(43)(C). After all the factors

were accounted for, the PSR calculated Guillen-Cruz’s offense level as 14. At

sentencing, the district court reduced the offense level to 13, resulting in an

advisory sentencing range of 18 to 24 months’ imprisonment. The district court

sentenced Guillen-Cruz to 24 months’ imprisonment.

Guillen-Cruz appeals, asserting an argument he did not raise below: the

district court inappropriately imposed a sentencing enhancement pursuant to

USSG § 2L1.2(b)(1)(C). Because we find that the district court erred in

imposing the enhancement, that each factor of plain error review is satisfied,

and that the error merits the exercise of our discretion, we VACATE Guillen-

Cruz’s sentence and REMAND for resentencing.

I

This court reviews the district court’s interpretation of the Guidelines de

novo. United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000). Because

Guillen-Cruz did not raise an objection to the enhancement before the district

court, we review for plain error. See United States v. Hernandez, 690 F.3d 613,

620 (5th Cir. 2012). To establish plain error, Guillen-Cruz must show: (1) an

error or defect “that has not been intentionally relinquished or abandoned”; (2)

that the legal error was “clear or obvious, rather than subject to reasonable

dispute”; and (3) that the error affected his substantial rights. United States

v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett

v. United States, 556 U.S. 129, 135 (2009)). If these three elements are

satisfied, we have the discretion to remedy the error “if the error seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

(quoting Puckett, 556 U.S. at 135).

1This section was recently amended. Citations to the Guidelines refer to the section

that was in effect at the time Guillen-Cruz was sentenced.

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II

Under USSG § 2L1.2(b)(1)(C), a district court must increase a

defendant’s offense level by eight if the defendant has previously been deported

after a conviction for an aggravated felony. “Aggravated felony” has the

meaning given that term at 8 U.S.C. § 1101(a)(43), which contains a lengthy

list of offenses and categories of offenses. The Government argues that

Guillen-Cruz’s prior conviction under 22 U.S.C. § 2778 qualifies as an

aggravated felony either under 8 U.S.C. § 1101(a)(43)(C), defining aggravated

felony as “illicit trafficking in firearms,” “destructive devices,” or “explosive

materials,” or under § 1101(a)(43)(E)(ii), defining aggravated felony as an

offense described in 18 U.S.C. § 924(b).

A

When considering whether a defendant’s prior conviction constitutes an

aggravated felony, “courts use what has become known as the ‘categorical

approach’: They compare the elements of the statute forming the basis of the

defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense

as commonly understood.” Descamps v. United States, 133 S. Ct. 2276, 2281

(2013). However, “[i]f the statute of conviction defines multiple offenses, at

least one of which does not describe an aggravated felony, we apply a modified

categorical approach.” Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir.

2006). This modified categorical approach allows for examination of specified

documents to determine under which subsection of a divisible statute the

individual was convicted. Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005).

For guilty plea convictions, this “may include consideration of the ‘charging

document, written plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant assented.’” Id.

(quoting Shepard v. United States, 544 U.S. 13, 20–21 (2005)). Usually, courts

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must first determine whether to apply the categorical or modified categorical

approach. See generally Mathis v. United States, 136 S. Ct. 2243 (2016).

However, because Guillen-Cruz’s prior offense is not an aggravated felony

under either approach, we pretermit deciding which approach is applicable. 2

B

1

Guillen-Cruz’s sentence was enhanced based on a violation of 22 U.S.C.

§ 2778(b)(2) and (c), which prohibit the willful export of articles on the

Munitions List, 22 C.F.R. § 121.1, without a license. Guillen-Cruz argues that

his conviction is not an aggravated felony because he was convicted of

exporting high-capacity rifle magazines, which he contends is conduct that

does not fall under the definition of aggravated felony at 8 U.S.C.

§ 1101(a)(43)(C). The Government does not argue to the contrary, instead

asserting that Guillen-Cruz cannot meet his burden on plain error review

because no case establishes that a conviction under 22 U.S.C. § 2778(b) and (c)

does not qualify as an aggravated felony.

The Government is correct that, generally, “if a defendant’s theory

requires the extension of precedent, any potential error could not have been

‘plain.’” United States v. Guzman, 739 F.3d 241, 246 n.8 (5th Cir. 2014)

(quoting United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005)).

However, this court has found clear error in the absence of precedent where

the plain language of the prior offense statute clearly criminalized conduct

2 The Government argues that it is unclear “whether, or to what extent, the categorical

or modified categorical approaches” should be used in a case where a defendant’s prior

conviction is for a federal offense. However, this court has previously held that the

categorical and modified categorical approaches apply when determining whether a prior

federal conviction constitutes an aggravated felony under § 1101(a)(43)(C). See, e.g., Franco-

Casasola v. Holder, 773 F.3d 33, 36–37 (5th Cir. 2014).

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outside of the Guidelines offense. See United States v. Maturin, 488 F.3d 657,

663 (5th Cir. 2007). To our knowledge, no court has previously decided

whether a conviction under 22 U.S.C. § 2778(b)(2) and (c) constitutes an

aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(C). Notwithstanding

the lack of precedent, it is plain from the face of the relevant statutes and

regulations that it does not.

As used in the relevant sentencing provision, USSG § 2L1.2(b)(1)(C),

“’aggravated felony’ has the meaning given that term in section 101(a)(43) of

the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)).”

Section 1101(a)(43)(C) defines aggravated felony as “illicit trafficking in

firearms or destructive devices (as defined in [18 U.S.C. § 921]) or in explosive

materials (as defined in [18 U.S.C. § 841(c)]).” Under 18 U.S.C. § 921(a)(3), a

“firearm” is defined as “(A) any weapon (including a starter gun) which will or

is designed to or may readily be converted to expel a projectile by the action of

an explosive; (B) the frame or receiver of any such weapon; (C) any firearm

muffler or firearm silencer; or (D) any destructive device.” A “frame or

receiver” is the “part of a firearm which provides housing for the hammer, bolt

or breechblock and firing mechanism, and which is usually threaded at its

forward portion to receive the barrel.” 27 C.F.R. § 479.11. The term

“destructive device” means “any explosive, incendiary, or poison gas” bomb,

grenade, mine, rocket, missile, or similar device. 18 U.S.C. § 921(a)(4)(A). A

destructive device may also be “any type of weapon . . . which will, or which

may be readily converted to, expel a projectile by the action of an explosive or

other propellant, and which has any barrel with a bore of more than one-half

inch in diameter.” Id. § 921(a)(4)(B). Destructive devices include “any

combination of parts either designed or intended for use in converting any

device into any destructive device described [above] and from which a

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destructive device may be readily assembled.” Id. § 921(a)(4)(C). “‘Explosive

materials’ means explosives, blasting agents, and detonators.” Id. § 841(c).

A magazine is an element of a firearm that houses ammunition. See

United States v. Gonzalez, 792 F.3d 534, 535–36 (5th Cir. 2015) (including a

helpful primer on magazines). Under the definitions discussed above, a rifle

magazine is plainly not a “firearm” or “the frame or receiver” of a firearm or a

“muffler or firearm silencer.” See 18 U.S.C. § 921(a)(3). Nor is a magazine a

“destructive device” for purposes of § 921(a)(4)(A). The closest apparent match

is a sub-definition of destructive device that includes “any type of weapon [or

combination of parts] . . . which will, or which may be readily converted to,

expel a projectile by the action of an explosive or other propellant, and which

has any barrel with a bore of more than one-half inch in diameter.” Id. at

§ 921(a)(4)(B)–(C). However, Guillen-Cruz’s prior conviction was for export of

magazines that hold 7.62x39 millimeter ammunition, and the statute requires

that a weapon or “combination of parts” to create such weapon must have a

“barrel with a bore of more than one-half inch in diameter.” Id. Even if a

magazine could constitute a subset of a “combination of parts” for purposes of

this provision, the barrel bore for a weapon that uses 7.62 millimeter, or .3

inch, ammunition, would not be more than half-an-inch in diameter. 3

There is no definition in 18 U.S.C. § 841(c) or § 921 that, on its face,

includes rifle magazines. Thus, under the modified categorical approach,

enhancing Guillen-Cruz’s sentence based on a prior conviction for exporting

rifle magazines constituted a clear or obvious error.

3 The caliber of a firearm corresponds with the caliber of the bullet that the firearm

will project. See NATIONAL RESEARCH COUNCIL’S COMMITTEE TO ASSESS THE FEASIBILITY,

ACCURACY AND TECHNICAL CAPABILITY OF A NATIONAL BALLISTICS DATABASE, BALLISTIC

IMAGING 36 (NAT’L ACADEMIES PRESS 2008).

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The error is even more plain under the categorical approach: Articles on

the Munitions List include items that clearly do not fit within the relevant

definitions, such as “[w]arships and other combatant vessels,” and “[r]adar

systems and equipment.” 22 C.F.R. § 121.1. This renders a conviction under

22 U.S.C. § 2778(b)(2) and (c) categorically broader than the generic offense,

“illicit trafficking in firearms,” “destructive devices,” or “explosive materials,”

8 U.S.C. § 1101(a)(43)(C). Thus, “it is indisputably clear from a reading of the

plain statutory language” that a conviction for exporting an item on the

Munitions List is not an aggravated felony. See Maturin, 488 F.3d at 663.

2

The Government contends that even if Guillen-Cruz’s conviction is not

an aggravated felony under § 1101(a)(43)(C), his prior conviction satisfies the

definition of aggravated felony at § 1101(a)(43)(E)(ii), which includes

“offense[s] described in . . . [18 U.S.C. § 924 (b)] (relating to firearms offenses).”

Specifically, the Government claims that Guillen-Cruz’s 22 U.S.C. § 2278

conviction proves an offense described in 18 U.S.C. § 924(b), which states:

Whoever, with intent to commit therewith an offense punishable

by imprisonment for a term exceeding one year, or with knowledge

or reasonable cause to believe that an offense punishable by

imprisonment for a term exceeding one year is to be committed

therewith, ships, transports, or receives a firearm or any

ammunition in interstate or foreign commerce shall be fined under

this title, or imprisoned not more than ten years, or both.

The Government argues that rifle magazines are “ammunition” for purposes of

this statute, and points to a Fourth Circuit case that, it claims, stands for the

proposition that proving a 22 U.S.C. § 2778 offense necessarily proves a

violation of 18 U.S.C. § 924(b). See United States v. Wilson, 721 F.2d 967, 971

(4th Cir. 1983). Guillen-Cruz argues, inter alia, that the “relating to firearms

offenses” parenthetical indicates exclusion of ammunitions offenses and that

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the Fourth Circuit’s decision in Wilson dealt specifically with convictions for

“transport of firearms in foreign commerce with intent to commit a felony,” not

all 22 U.S.C. § 2778(b) convictions.

While incorporating 18 U.S.C. § 924(b) by reference, the definition of

aggravated felony at 8 U.S.C. § 1101(a)(43)(E)(ii) specifies “(relating to

firearms offenses).” The Government cites an unpublished Ninth Circuit case

and a Board of Immigration Appeals case holding that, notwithstanding the

parenthetical, ammunitions offenses qualify as aggravated felonies for

purposes of § 1101(a)(43)(E)(ii). Ruvalcaba-Castorena v. Lynch, 637 F. App’x

420, 420 (9th Cir. 2016); In re Oppedisano, 26 I. & N. Dec. 202, 203–06 (BIA

2013). The Government argues that these and other cases, which hold that

“relating to” language was descriptive rather than restrictive, show that the

parenthetical does not exclude ammunitions—as opposed to firearms—

offenses. This understanding comports with this court’s reading of at least one

other “relating to” parenthetical in § 1101(a)(43). See Ruiz-Romero v. Reno,

205 F.3d 837, 839–40 (5th Cir. 2000) (“relating to alien smuggling”

parenthetical at § 1101(a)(43)(N) was merely descriptive and not restrictive);

United States v. Monjaras-Castaneda, 190 F.3d 326, 331 (5th Cir. 1999) (same).

Moreover, it comports with a reading of the other subsections of § 1101(a)(43),

which reference a number of statutes and frequently include a “relating to”

parenthetical, even where all of the offenses referenced in the statute “relate

to” the enumerated offense. See, e.g., § 1101(a)(43)(D) (referring to “an offense

described in section 1956 of title 18,” which is the section for “[l]aundering of

monetary instruments,” and specifying “(relating to laundering of monetary

instruments)”); § 1101(a)(43)(J) (referring to 18 U.S.C. § 1962, which lists only

racketeer influenced corrupt organizations offenses, and specifying “(relating

to racketeer influenced corrupt organizations)”). If the “relating to” language

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were intended to be restrictive, it would be mere surplusage in each of these

examples. See Luster v. Collins (In re Collins), 170 F.3d 512, 512 (5th Cir.

1999) (“The canons of interpretation are suspicious of surplussage [sic].”).

Thus, we find the “relating to firearms offenses” parenthetical is descriptive,

rather than limiting.

However, even without any limitation, the Government cannot establish

its alternative basis for affirmance. First, we disagree with the Fourth Circuit

to the extent it held that “proof of all the elements of [22 U.S.C.] § 2778

automatically proves a [18 U.S.C.] § 924(b) violation.” Wilson, 721 F.2d at 971.

That cannot be true, as a conviction under 22 U.S.C. § 2278(b) and (c) could be

sustained if an individual exported a warship or “[r]adar systems and

equipment,” 22 C.F.R. § 121.1, items which are plainly not anticipated by the

firearms or ammunition offenses listed in 18 U.S.C. § 924(b). Second, 7.62x39

millimeter magazines are neither “firearms” nor “ammunition” for purposes of

§ 924(b). Firearm, as used in § 924(b) has the same definition discussed in the

previous section, see § 921(a)(3), and does not include magazines for the

reasons previously explained. Ammunition is defined as “ammunition or

cartridge cases, primers, bullets, or propellant powder designed for use in any

firearm.” 18 U.S.C. § 921(a)(17)(A). A magazine is not any of these items, but

a part that “stores [bullet] cartridges in a column and attaches to the firearm.”

Gonzalez, 792 F.3d at 536. The Government cites no case in support of its claim

that a magazine is ammunition. A plain reading of the relevant statutes

confirms that the magazine at issue are neither firearms, nor ammunition for

purposes of § 924. Thus, the Government fares no better under 8 U.S.C.

§ 1101(a)(43)(E)(ii) than it did under § 1101(a)(43)(C).

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C

Having determined that the district court committed an error that was

clear or obvious, and that the Government has not successfully raised an

alternative basis for affirmance, we now turn to the remaining prongs of plain

error review: the impact on Guillen-Cruz’s substantial rights and our own

discretion. See Escalante-Reyes, 689 F.3d at 419. Where a defendant shows “a

reasonable probability of a different outcome absent the error,” he has

established that the error affected his substantial rights. Molina-Martinez v.

United States, 136 S. Ct. 1338, 1346 (2016); see Puckett, 556 U.S. at 135.

Absent the erroneous enhancement, Guillen-Cruz’s advisory range would have

been reduced from between 18 and 24 months to between 10 and 16 months of

imprisonment. As the Government concedes, because the district court

imposed a within-Guidelines sentence, there is a reasonable probability that

but for the error, the district court would have imposed a shorter sentence.

Thus, Guillen-Cruz has shown that the error affected his substantial rights.

A court should correct a plain, forfeited error affecting substantial rights

only where “the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736

(1993) (citation, alteration, and internal quotation marks omitted). In

evaluating this aspect of plain error review, we “consider the particular facts

and degree of error in this case, and compare those factors to other cases that

have turned on the fourth prong.” United States v. Martinez-Rodriguez, 821

F.3d 659, 664 (5th Cir. 2016). Guillen-Cruz argues that the error was sufficient

to significantly affect his substantial rights, and therefore the error

compromised the fairness of the proceedings. The Government argues in its

briefing that the court should not exercise its discretion to reverse the error

because the degree of error was insignificant, Guillen-Cruz’s prior conviction

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under 22 U.S.C. § 2778 was the equivalent of a conviction under 18 U.S.C.

§ 924(b), and Guillen-Cruz has a substantial criminal history.

The Government made additional contentions concerning our discretion

after the conclusion of briefing. In a motion to supplement the record, the

Government averred that Guillen Cruz had submitted a letter to the

sentencing court in his prior 22 U.S.C. § 2778 case, in which he accepted

responsibility for his actions, including possessing rifles and ammunitions with

the intent to export these items to Mexico. The Government contends that

because Guillen-Cruz has admitted in a prior action that he committed an

aggravated felony, we need not vacate his sentence. The Government raised

two additional issues at oral argument, contending (1) that due to a recent

Guidelines amendment, had he been convicted of illegal reentry today, Guillen-

Cruz’s prior offense would qualify as an aggravated felony under the new

definition of that phrase, and (2) that an arrest listed in Guillen-Cruz’s

criminal history has since ripened into a theft conviction—an aggravated

felony—rendering irrelevant the collateral immigration consequences of the

erroneous enhancement. The Government argues that these factors decrease

the injustice of letting the erroneous enhancement stand.

As previously discussed, in the absence of the enhancement, Guillen-

Cruz’s advisory sentencing range would have been reduced from between 18

and 24 months to between 10 and 16 months of imprisonment. The degree of

error in a given case certainly affects whether the fairness, integrity, or public

reputation of judicial proceedings has been compromised. See Martinez-

Rodriguez, 821 F.3d at 664–67; United States v. John, 597 F.3d 263, 288 (5th

Cir. 2010). Despite the Government’s argument that an 8-month difference is

a “small degree of error,” this court has held in both published and unpublished

opinions that sentencing errors of a similar magnitude seriously affected the

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fairness, integrity, and public reputation of sentencing proceedings and

warranted reversal. See United States v. Santacruz-Hernandez, 648 F. App’x

456, 458 (5th Cir. 2016) (finding reversible plain error where error resulted in

sentencing range increase from between 4 and 10 months to between 6 and 12

months and defendant received 12-month sentence); United States v.

Mudekunye, 646 F.3d 281, 289–91 (5th Cir. 2011) (finding reversible plain

error where error resulted in sentencing range increase from between 63 and

78 months to between 78 and 97 months and defendant received 97-month

sentence); John, 597 F.3d at 285–86 (finding reversible plain error where error

resulted in sentencing range increase from between 70 and 87 months to

between 97 and 121 months and defendant received a 108-month sentence);

United States v. Carrizales-Jaramillo, 303 F. App’x 215, 217 (5th Cir. 2008)

(finding reversible plain error where error resulted in sentencing range

increase from between 24 and 30 months to between 30 and 37 months and

defendant received 31-month sentence). We find that the disparity caused by

the error in this case weighs in favor of vacatur.

We have already established that Guillen-Cruz’s 22 U.S.C. § 2778

conviction is not an aggravated felony as defined in § 1101(a)(43)(E)(ii). The

Government does not cite authority for its contention that a 22 U.S.C. § 2778

conviction is “just as egregious” as an 18 U.S.C. § 924(b) conviction. Thus, this

factor does not weigh against exercising our discretion to vacate the sentence

in this case.

The Government argues that Guillen-Cruz’s significant criminal history

“militates against satisfaction of the fourth prong,” specifically pointing to

Guillen-Cruz’s multiple prior arrests and the 22 U.S.C. § 2778 conviction.

Guillen-Cruz’s PSR indicates that in the four years preceding his present

offense he was arrested for: transporting six undocumented aliens (formal

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charges were not filed); attempting to smuggle five 5.56 caliber magazines into

the United States (formal charges were not filed); unauthorized use of a motor

vehicle (the case was dismissed in the interest of justice); burglary of a

habitation (the complaint was dismissed); and public intoxication (no charges

were filed). At the time the PSR was written, Guillen-Cruz also had a pending

charge for theft by appropriation, which the Government informs us has since

ripened into a conviction. None of these events contributed to Guillen-Cruz’s

criminal history score, which, according to the PSR, meant that the criminal

history category substantially under-represented the seriousness of Guillen-

Cruz’s criminal history or the likelihood that he will commit other crimes.

However, the district court declined to depart upward on the basis of this

information.

We do not believe that the defendant’s criminal history supports a basis

for affirming the erroneous sentence. Martinez-Rodriguez, cited by the

Government, held that despite the defendant’s criminal history, the court

would “not ignore the disparity in the sentences that [the defendant]

identifie[d] on appeal.” 821 F.3d at 666–67. While the absolute disparity in

that case was greater than it is here, we find that Guillen-Cruz’s criminal

history, which largely consists of arrests for which the underlying conduct was

never charged or the charges were eventually dismissed does not trump the

significant sentencing disparity caused by the district court’s plain error.

The Government failed to raise its argument that Guillen-Cruz

previously admitted responsibility for conduct that could have supported an

aggravated felony enhancement in its brief. Parties are required to brief their

contentions to preserve them. FED. R. APP. P. 28; see Hernandez v. Garcia

Pena, 820 F.3d 782, 786 n.3 (5th Cir. 2016). Whether we will consider an

unpreserved argument is a matter of discretion. See United States v. Miranda,

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248 F.3d 434, 443 (5th Cir. 2001). Although we construe this rule “more

leniently when the party who fails to brief an issue is the appellee,” Garcia

Pena, 820 F.3d at 786 n.3 (citation omitted), the facts supporting the

Government’s argument are noted in the PSR and were readily available prior

to briefing. As we see no “substantial public interests” implicated by the

resolution of this issue, see Miranda, 248 F.3d at 444, we find that the

Government has forfeited it.

Similarly, with respect to the Government’s remaining arguments, even

if they had merit, “we generally do not consider contentions raised for the first

time at oral argument,” Martinez v. Mukasey, 519 F.3d 532, 545–46 (5th Cir.

2008), and decline to do so here. As evidenced by the attachment to the

Government’s Rule 28j letter—which was filed after oral argument—Guillen-

Cruz’s theft conviction was finalized in January 2016, well before the

Government submitted its brief on appeal. Similarly, the Guidelines

amendment cited was available to the Government in advance of oral

argument, at the very least by its November 1, 2016, effective date, see U.S.

SENTENCING GUIDELINES MANUAL app. C, amend. 802 (U.S. SENTENCING

COMM’N 2016), and should properly have been brought to the court’s attention

via a Rule 28j letter in advance of oral argument. The Government has given

us no reason to depart from our usual practice.

***

For these reasons, we VACATE Guillen-Cruz’s sentence and REMAND

for resentencing.

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