Petition for Writ of Certiorari — Jose Madrid-Becerra, Petitioner v. United States

APPENDIX

1a

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

United States of America,

Plaintiff - Appellee,

vs.

Jose

Yobani

MadridBecerra, AKA Jose Jobane

Madrid-Becerra, AKA Jose

Madrid-Mesena,

Defendant-Appellant.

No. 19-10458

D.C. No. 2:19-cr-01067

DJH-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Diane J. Humetewa, District Judge, Presiding

Argued and Submitted May 13, 2021

Pasadena, California

Filed October 1, 2021

Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges,

and Kathleen Cardone,* District Judge.

Opinion by Judge Bybee;

Dissent by Judge Cardone

*

The Honorable Kathleen Cardone, United States District

Judge for the Western District of Texas, sitting by designation.

2a

COUNSEL

Michael L. Burke (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender;

Office of

the Federal Public Defender, Phoenix, Arizona; for

Defendant-Appellant.

Seth T. Goertz (argued), Assistant United States

Attorney; Krissa M. Lanham, Appellate Division

Chief; Michael Bailey, United States Attorney; United

States Attorney’s Office, Phoenix, California; for

Plaintiff-Appellee.

OPINION

BYBEE, Circuit Judge:

Defendant Jose Madrid-Becerra appeals from

his sentence for a conviction of illegal re-entry

under 8 U.S.C. § 1326(a). He argues that the

district court erred by applying United States

Sentencing

Guidelines

(U.S.S.G.

or

Guidelines) § 4A1.1(d) to raise his criminal

history score and, consequently, his

Guidelines range. The crux of MadridBecerra’s argument is that he did not commit

his illegal reentry offense “while under any

criminal justice sentence,” as required by §

4A1.1(d).

Because the district court correctly applied §

4A1.1(d),

we

affirm

Madrid-Becerra’s

sentence.

I.

3a

BACKGROUND

In June 2013, Madrid-Becerra was convicted

of solicitation to commit transportation of

marijuana for sale under Arizona law and

sentenced to two and a half years. After

serving a portion of his sentence in prison, he

was granted early conditional release under

Ariz. Rev. Stat. § 41- 1604.14 (repealed Aug. 6,

2016), known as the “half-term to deport”

program. That statute permitted the Arizona

Department of Corrections (ADOC) to “release

a prisoner to the custody and control of the

United States immigration and customs

enforcement” if ADOC receives an order of

deportation, the prisoner has served at least

one-half of the sentence imposed, and the

offense meets certain other requirements. See

Ariz. Rev. Stat. § 41-1604.14(A). It also

provided that “[i]f a prisoner who is released

pursuant to this section returns illegally to the

United States, on notification from any federal

or state law enforcement agency that the

prisoner is in custody, [ADOC] shall revoke

the prisoner’s release.” Id. § 41-1604.14(B).

Shortly after ADOC released Madrid-Becerra

in 2014 to the custody of the United States

pursuant to § 41-1604.14, he was removed to

Mexico.

Madrid-Becerra re-entered the United States

without inspection in June 2016. In December

2017, Madrid-Becerra was arrested by local

Arizona police on assault charges. He was

later convicted of attempted aggravated

assault and sentenced to eighteen months

4a

imprisonment. The Maricopa County Superior

Court ordered his sentence to run concurrent

with the remainder of his sentence from his

2013 offense.

In July 2019, Arizona released MadridBecerra to U.S. Immigration and Customs

Enforcement (ICE) custody, which detained

him on a felony complaint. He was later

indicted for illegal re-entry and pleaded guilty

to the offense. At sentencing, the Pre-Sentence

Report (PSR) prepared by the United States

Probation Office assessed a criminal history

score of eight, two points of which were due to

the PSR’s conclusion that Madrid-Becerra

“committed the instant offense while under a

criminal justice sentence for [his 2013

conviction for] solicitation to commit

transportation of marijuana for sale.” U.S.S.G.

§ 4A1.1(d). His criminal history score placed

his Guidelines range for custody at 46 to 57

months, though the PSR recommended a

downward departure to 27 months.

Madrid-Becerra objected to the PSR’s

assessment of the “two-level enhancement for

committing the instant offense while under a

criminal justice sentence” because Arizona’s

“half-term to deport” program “does not have

any custodial or supervisory component.” He

argued that without the extra two points, his

Guidelines range would have been 37 to 46

months. The district court heard argument on

this objection at sentencing but found that the

enhancement was applicable. The court

thereafter sentenced Madrid-Becerra to 27-

5a

months imprisonment with credit for time

served, followed by three years of supervised

release. His projected release date is August 3,

2021.

II.

JURISDICTION AND STANDARD

OF REVIEW

We have jurisdiction to review MadridBecerra’s sentence under 28 U.S.C. § 1291.

“We review de novo the district court’s

interpretation of the Sentencing Guidelines,”

including the calculation of the criminal

history score. United States v. Gonzalez, 739

F.3d 420, 422 n.1 (9th Cir. 2013) (citing United

States v. Lichtenberg, 631 F.3d 1021, 1024 (9th

Cir. 2011)). We review “the district court’s

application of the Sentencing Guidelines to

the facts of this case for abuse of discretion,

and the district court’s factual findings for

clear error. United States v. Stoterau, 524 F.3d

988, 997 (9th Cir. 2008) (citation omitted).

III.

ANALYSIS

Madrid-Becerra argues that the district court

improperly applied U.S.S.G. § 4A1.1(d)

because he was not “under any criminal

justice sentence” when he committed his

illegal reentry offense. First, Madrid-Becerra

argues that his early release did not provide

for supervision of, or place restrictions or

conditions on, his subsequent actions. Second,

he argues that because Arizona repealed its

“half-term to deport” program in 2016, ADOC

lacked authority to reinstate his sentence in

6a

2017. Third, he asserts that the district court

clearly erred in determining that he had notice

that his return to the United States would

result in reinstatement of his sentence and

that his sentence was actually reinstated. We

disagree on all counts.

A. Custodial or Supervisory Component

U.S.S.G. § 4A1.1(d) provides that two points

should be added to the defendant’s criminal

history score “if the defendant committed the

instant offense while under any criminal

justice sentence, including probation, parole,

supervised release, imprisonment, work

release, or escape status.” The commentary

states that “a ‘criminal justice sentence’

means a sentence countable under § 4A1.2 . . .

having a custodial or supervisory component,

although active supervision is not required for

this subsection to apply.” U.S.S.G. § 4A1.1,

cmt. n.4 (emphasis added). The commentary

specifically notes that “a term of unsupervised

probation would be included, but a sentence to

pay a fine, by itself, would not be included.” Id.

Madrid-Becerra asserts that there were no

restrictions or conditions placed on his

subsequent actions after his release. This is

plainly incorrect. Ariz. Rev. Stat. § 411604.14(B) provided that early release “shall”

be revoked if the defendant “returns illegally

to the United States” and the ADOC receives

notification from “any federal or state law

enforcement agency” that the defendant is in

custody. This is both a restriction and a

7a

condition. The benefit of Arizona’s early

release could only be enjoyed so long as

Madrid-Becerra did not re-enter the United

States illegally. If he reentered illegally, his

early release was subject to revocation by

ADOC, and he would have to serve the

remainder of his sentence. This condition is

sufficient to supply the “supervisory

component” required by U.S.S.G. § 4A1.1(d).

See United States v. Franco-Flores, 558 F.3d

978, 981–82 (9th Cir. 2009).

Madrid-Becerra argues that there must be

some active form of supervision to trigger the

application of § 4A1.1(d). The comment to §

4A1.1 is quite clear on this point: “active

supervision is not required for this subsection

to apply.” U.S.S.G. § 4A1.1, cmt. n.4. Our

decision in United States v. Ramirez-Sanchez,

338 F.3d 977 (9th Cir. 2003), is on point. In

that case, upon his release from custody for

having committed an unspecified crime,

Ramirez-Sanchez was deported without

having gone into active probation supervision.

Id. at 979. Like Madrid-Becerra, RamirezSanchez argued that U.S.S.G. § 4A1.1(d) did

not apply to him because he was not

supervised in any way following his

deportation. Id. We explained that “a term of

supervised release remains intact after a

defendant’s deportation.” Id. at 980. We noted

that Congress, in a section entitled “Inclusion

of a term of supervised release after

imprisonment,” has provided:

8a

If an alien defendant is subject to

deportation, the court may provide,

as a condition of supervised

release, that he be deported and

remain outside the United States,

and may order that he be delivered

to a duly authorized immigration

official for such deportation.

18 U.S.C. § 3583(d). We thus concluded that

despite the lack of active supervision,

“deportation does not terminate supervised

release . . . [or] probation.” Ramirez-Sanchez,

338 F.3d at 981; see also United States v.

Gonzalez, 739 F.3d 420, 423–24 (9th Cir. 2013)

(holding that deportation did not terminate

the defendant’s parole and that unsupervised

parole was sufficient for § 4A1.1(d)); United

States v. McCrudden, 894 F.2d 338, 339 (9th

Cir.

1990)

(per

curiam)

(“Even

if

unsupervised, probation can be revoked and

replaced by a sentence of greater punishment

if further offenses are committed during the

probationary period. The nonsupervisory

status of a sentence of probation does not

exempt it from section 4A1.1(d).”).

Madrid-Becerra argues that nothing “in the

record suggests that . . . he was under any

form of supervision by any probation officer or

ADOC employee.” But even assuming MadridBecerra was not subject to court-ordered

conditions of release, that is not the issue.

Rather, the question is whether MadridBecerra was subject to any condition that

related to a “custodial or supervisory

9a

component” of his sentence. He was. MadridBecerra was released subject to the statutory

condition that he not illegally re-enter the

United States. Otherwise his release would be

subject to revocation, and he would have to

serve the remainder of his sentence. It was a

clear rule, with a clear consequence related to

a “custodial or supervisory” component, and

he was subject to ADOC supervision on the

basis of this condition.

Madrid-Becerra also contends that ADOC

could not be supervising him because, under §

14 1604.14, revocation of his release was

triggered by notification from “some other law

enforcement agency.” But this is also

immaterial. That one law enforcement agency

would learn about information from another

agency is neither surprising nor novel. It is

quite common for parole or probation to be

revoked based on a notification from another

law enforcement agency. An offender out on

federal supervised release may be subject to

revocation because a state law enforcement

agency has notified the federal probation

officer of a violation. A state or federal law

enforcement agency notifying the ADOC of a

violation is no different. What matters is that

ADOC retained the ability to “supervise”

Madrid- Becerra’s behavior, even if it did not

do so directly.

United States v. Kipp, 10 F.3d 1463 (9th Cir.

1993), and United States v. Gonzalez Vazquez,

719 F.3d 1086 (9th Cir. 2013), do not govern

here. In Kipp, the defendant had a suspended

10a

sentence for a traffic offense. We first found

that “[b]y definition, a suspended sentence has

no ‘custodial component.’” 10 F.3d at 1467. In

Kipp’s case, “[s]ince [a] sentence has not been

imposed, the defendant cannot be ‘under’ a

sentence” for the purposes of § 4A1.1(d). Id.

(footnote omitted). Thus, unless a suspended

sentence had “an accompanying term of

probation,” it is “not a ‘criminal justice

sentence,’ as that term is used in § 4A1.1(d).”

Id.; see also Franco-Flores, 558 F.3d at 982

(recognizing that in Kipp, there was no

supervisory component because “no conditions

whatsoever were imposed on the defendant,

including any probation-like components.”).

Gonzalez Vazquez is also inapposite. That case

was concerned not with the relevant section of

the Guidelines at issue here, but with §

4A1.2(c)(1)(A),

which

makes

certain

misdemeanor

offenses

“countable”

for

purposes of the criminal history computation

if they were accompanied by a term of

“probation.” See 719 F.3d at 1089 & n.8. In

contrast, “criminal justice sentence” in §

4A1.1(d) includes, but is not limited to,

probation. See U.S.S.G. § 4A1.1 cmt. n.4

(noting that “any criminal justice sentence”

“include[s] probation, parole, supervised

release, imprisonment, work release, or

escape status”); see also Franco-Flores, 558

F.3d at 982 (“[A] suspended sentence with a

supervisory or custodial component can

constitute a ‘criminal justice sentence’ under

section 4A1.1(d).”). Moreover, as in Kipp, it

was unclear from the state statute “whether a

11a

court that suspends all or part of a sentence

merely may, or must, direct any supervision of

misdemeanants.” Id. at 1092. We concluded

that in the absence of any express imposition

of probation, “the better inference is that

Gonzalez Vazquez was not sentenced to

probation,” and his suspended sentence

therefore did not count for the purposes of his

Guidelines calculation. Id. at 1092.

Here, there is no question that MadridBecerra’s sentence was imposed and that as a

condition of his early release from prison,

Arizona required that Madrid-Becerra not

illegally reenter the United States. If he did so

and was discovered, his release was to be

revoked and he was to be returned to custody

to serve the remainder of his initial sentence.

This condition was mandatory, part and

parcel of the terms of his original sentence

under Arizona law, and reflects a “custodial or

supervisory component” akin to probation.

U.S.S.G. § 4A1.1 cmt. n.4. We hold that

Madrid-Becerra was “under any criminal

justice sentence” when he illegally reentered

the United States within the meaning of

U.S.S.G. § 4A1.1(d).

B. Repeal of the Arizona Statute

Madrid-Becerra also argues that, at the time

he was discovered in the United States, he was

no longer under a criminal justice sentence

because the statute authorizing revocation of

his release had been repealed. In 2016, the

Arizona legislature repealed the half-term to

12a

deportation program. See 2016 Ariz. Sess.

Laws, ch. 89, § 1. Madrid-Becerra argues that

absent a savings clause or general saving

statute, the repeal “divests the right to

proceed under the statute.” But Arizona does

have a savings statute. In fact, it has two of

them: Ariz. Rev. Stat. §§ 1-246, 1-247. 1 These

statutes provide that “the repeal or alteration

of any statute shall not have the effect of

exempting from punishment a person who has

offended against the altered or repealed law.”

State v. Vineyard, 392 P.2d 30, 33 (Ariz. 1964).

They apply to laws that “alter the penalty

which was attached to any offense, [] create a

new penalty, []or change the sentence

imposed.” Tyree v. Moran, 550 P.2d 1076, 1078

(Ariz. 1976). If the penalty is altered by a

subsequent law, these general savings

provisions require that “the offender shall be

punished under the law in force when the

1 A.R.S. § 1-247 provides:

When by the provisions of a repealing statute a

new penalty is substituted for an offense

punishable under the law repealed, such

repealing statute shall not exempt from

punishment a person who has offended against

the repealed law while it was in force, but in such

case the rule prescribed in § 1-246 shall govern.

In turn, A.R.S. § 1-246 provides:

When the penalty for an offense is prescribed by

one law and altered by a subsequent law, the

penalty of such second law shall not be inflicted

for a breach of the law committed before the

second took effect, but the offender shall be

punished under the law in force when the offense

was committed.

13a

offense was committed.” Ariz. Rev. Stat. § 1246. “Absent express language, Arizona

statutes are not retroactive.” State v. Stine,

906 P.2d 58, 59 (Ariz. Ct. App. 1995).

Here, applying the repeal to preclude ADOC

from revoking Madrid-Becerra’s sentence

would effectively “change the sentence

imposed,” Tyree, 550 P.2d at 1078, because

Madrid-Becerra would not be subject to the

full term of his sentence. And, nothing in the

law repealing § 41-1604.14 expressly made it

retroactive. Thus, Arizona’s general savings

statutes require that, for aliens like MadridBecerra who were convicted when Ariz. Rev.

Stat. § 41-1604.14 was in force, that provision

continues to govern their sentences. We

conclude that ADOC maintained the authority

to revoke Madrid-Becerra’s release in 2016

and 2017 because of his illegal re-entry.

C. The District Court Did Not Factually Err

Madrid-Becerra alleges that the district court

clearly erred when it found that he was under

a criminal justice sentence at the time he

illegally re-entered the United States. First,

he argues that the district court erred by

determining that he had notice of the

condition that he not return illegally. Second,

he argues that the district court erred in

determining that he was returned to ADOC

custody to serve the remainder of his 2013

sentence.

14a

The district court did not clearly err in either

factual determination and there is no plain

error of law.2 First, even if the district court

erred in assuming that Madrid-Becerra had

received formal notice from the state court

during sentencing, Madrid-Becerra has not

demonstrated that this alleged error “affected

[his] substantial rights.” Christensen, 732

F.3d at 1102. As the district court noted, § 411604.14(B) is itself sufficient to provide notice

of the condition on Madrid-Becerra’s release.

Whether or not Madrid-Becerra received

formal notice from the state court is thus

irrelevant to whether he was “under any

criminal justice sentence.” Because the

alleged error would not have affected his

criminal history score or the applicable

guidelines range, Madrid-Becerra has not

demonstrated any prejudice affecting his

substantial rights.

Second, the district court did not clearly err in

finding that Madrid-Becerra’s early release

was in fact revoked. As a preliminary matter,

Madrid-Becerra points to no authority

indicating that the § 4A1.1(d) enhancement

applies only if defendant’s early release was

actually revoked. The Guidelines require

simply that a defendant be “under any

criminal justice sentence, including probation,

2 Because Madrid-Becerra did not raise these alleged factual

errors until appeal, we review for plain error. See United States

v. Rangel, 697 F.3d 795, 800 (9th Cir. 2012). Madrid-Becerra

“bears the burden of showing a reasonable probability that he

would have received a different sentence absent the error.”

United States v. Christensen, 732 F.3d 1094, 1102 (9th Cir. 2013).

15a

parole, supervised release, imprisonment,

work release, or escape status.” U.S.S.G. §

4A1.1 cmt. n.4. Neither the Guidelines nor its

Commentary requires that any parole or

release actually be revoked, or that an escapee

be apprehended. Moreover, under Federal

Rule of Criminal Procedure 32(i)(3)(A), the

district court “may accept any undisputed

portion of the [PSR] as a finding of fact.” Here,

the PSR stated that Madrid-Becerra was

“[r]eturned to custody to serve the remainder

of the conditional release.” Madrid-Becerra

concedes that he did not dispute this assertion

before the district court. Not only did he not

dispute the statement, but in his objection in

the addendum to the PSR, Madrid-Becerra

admitted that “upon being detected, he was

returned to the [ADOC] to serve the

remainder of his term.” Moreover, we may

take judicial notice that the Superior Court’s

sentencing order for Madrid-Becerra’s 2017

conviction indicates that his 2017 sentence

would run concurrent with the remainder of

his 2013 sentence. 3 Thus, because MadridBecerra did not challenge the PSR’s statement

that he was returned to custody to serve the

remainder of his 2013 sentence and there is

additional documentation supporting that

conclusion— including his own admission—

“the district court correctly accepted the

report’s findings.” United States v. George, 949

F.3d 1181,1187 (9th Cir.), cert. denied, 141 S.

Ct. 605 (2020).

3 We GRANT the Government’s unopposed motion for

judicial notice of this document.

16a

IV.

The judgment

AFFIRMED.

CONCLUSION

of

the

district

court

is

CARDONE, District Judge, dissenting:

This case turns on whether a prisoner who has

been released from serving his two-and-a-half

year sentence pursuant to Arizona’s half-term

to deportation program can nevertheless

remain “under [a] criminal justice sentence”

indefinitely. Because the Guidelines suggest

the answer is “no,” I respectfully dissent.

This Court has considered § 4A1.1(d)’s

application to suspended and deferred

sentences, United States v. Kipp, 10 F.3d 1463

(9th Cir. 1993); United States v. Franco-Flores,

558 F.3d 978 (9th Cir. 2009), unsupervised

probation with immediate deportation, United

States v. Ramirez-Sanchez, 338 F.3d 977 (9th

Cir. 2003), and nonrevocable parole, United

States v. Gonzalez, 739 F.3d 420 (9th Cir.

2013), among other schemes. But it has never

considered a “half-term to deportation

program” like Arizona’s, in which a prisoner

begins serving a fixed custodial sentence that

a department of corrections suspends for a

“potential lifetime duration.” As the

Government conceded at sentencing, the “halfterm release program doesn’t fall neatly into”

17a

§ 4A1.1(d). Based on the plain language,

structure, and purposes of the Guidelines, I

would hold that Appellant was not “under any

criminal justice sentence” at the time of his

federal offense.

Section 4A1.1(d) applies to a defendant “under

any criminal justice sentence, including . . .

parole.” The PSR and the majority refer to

Arizona’s program as “early conditional

release,” which is a form of parole. See

CONDITIONAL RELEASE, Black’s Law

Dictionary (11th ed. 2019). But the two are

materially distinguishable. Compare Kipp, 10

F.3d at 1467 (holding that defendant’s

suspended sentence was not a “criminal

justice

sentence”

because

it

was

distinguishable from the punishments listed

in § 4A1.1(d)), with Gonzalez, 739 F.3d at 424

(holding that § 4A1.1(d) applied to

nonrevocable parole because it was not

distinguishable from unsupervised probation).

Where, as here, “a criminal defendant has

been committed to the custody of the prison

authorities, any period served . . . on parole or

conditional release is deemed service of [their]

term of confinement, and such inmate is

entitled to credit on [their] prison sentence for

[that] period.” 24 C.J.S. Criminal Procedure

and Rights of Accused § 2394 (August 2021

Update). As the Supreme Court has

repeatedly observed, “[t]he essence of parole is

release from prison . . . on the condition that

the prisoner abide by certain rules during the

balance of the sentence.” Samson v. California,

18a

547 U.S. 843, 850 (2006) (emphasis added)

(quoting Morrissey v. Brewer, 408 U.S. 471,

477 (1972)). Rather than indefinitely

suspending

the

prisoner’s

term

of

incarceration, as was done here, a “paroled

prisoner continues to serve his or her sentence

while on parole until . . . the maximum term

of the sentence expires.” 59 Am. Jur. 2d

Pardon and Parole § 117 (August 2021

Update). And that makes sense since a parolee

“remain[s] in the legal custody and under the

control of prison authorities,” making parole a

“punishment” that “is in legal effect

imprisonment.” Id. By necessity, then,

aparolee’s sentence continues to run.

The majority maintains that Appellant

somehow remained subject to ADOC’s legal

custody or supervisory control like any other

parolee. But if that were true, then Appellant

would have remained under a “punishment”

that is “in legal effect imprisonment,” see id.,

he would have continued to serve his sentence,

and that sentence would have expired prior to

his illegal reentry. That did not happen here.

Instead, his custodial sentence stopped

running entirely and his service was

suspended indefinitely. That is neither parole

nor conditional release.

Indeed, Arizona’s scheme is distinguishable

from every “criminal justice sentence”

contemplated by § 4A1.1(d). Section 4A1.1(d)

provides that a “criminal justice sentence”

includes “probation, parole, supervised

release, imprisonment, work release, [and]

19a

escape status.” Under each of those schemes,

a defendant continues to serve their sentence

or remains obligated to do so. And for all but

“escape status” (discussed below), punishment

lasts for a fixed period or range of time,

allowing for continued service until the

sentence expires. 4 Each day on probation or

supervised release, for example, is one day

closer to absolute discharge. But not under

Arizona’s program. Instead, each day

Appellant spent on his “conditional release”

brought him no closer to the termination of his

sentence. There is no indication in the

Guidelines or case law that § 4A1.1(d) applies

to such a scheme.5

That conclusion is bolstered by § 4A1.1(d)’s

requirement that the defendant have been

“under” a criminal justice sentence. Although

the Guidelines do not define that term, this

Court and other courts have long suggested

1 For example, Black’s Law defines “probation” as “usually on

condition . . . over a specified period of time.” See PROBATION,

Black’s Law Dictionary (11th ed. 2019) (emphasis added). And

the Second Circuit has observed that the “practice of imposing

indeterminate probationary terms is relatively unique,” making

it unsurprising that “the Guidelines do not address this

situation.” United States v. Rich, 900 F.2d 582, 584–85 (2d Cir.

1990) (discussing § 4A1.2(c)(1)). Similarly, “supervised release”

is defined as “1. A period of probation that is imposed in addition

to a sentence of imprisonment rather than as a substitute for

part or all of that sentence.” SUPERVISED RELEASE, Black’s

Law Dictionary (11th ed. 2019) (emphasis added).

2 Indeed, the Commentary explains that “a term of

unsupervised probation would be included; but a sentence to pay

a fine” would not. U.S.S.G. § 4A1.1(d), cmt. n.4 (emphasis added).

A “term,” of course, means “[a] fixed period of time.” TERM,

Black’s Law Dictionary (11th ed. 2019). By contrast, a sentence

to pay a fine involves no similar temporal quality—there is no

term for a defendant to serve.

20a

that to be “under sentence” for the purposes of

§ 4A1.1(d), a defendant “need be serving [that]

sentence,” United States v. Wright, 891 F.2d

209, 211 (9th Cir. 1989), or “under a

requirement to serve [that] sentence,” United

States v. Damon, 127 F.3d 139, 147 (1st Cir.

1997), at the time of their federal offense. 6 And

that is consistent with common usage. See

United States v. Leal-Felix, 665 F.3d 1037,

1041 (9th Cir. 2011). A prisoner “under . . .

supervised release” or “under . . . probation” is

generally serving their sentence of supervised

release or probation, just like a defendant

“under . . . parole” is generally serving his

sentence of incarceration. Yet, here, Appellant

was neither serving nor required to serve his

sentence at all. Rather, “affirmative conduct

by the state reliev[ed] [Appellant] of his penal

obligation.” See United States v. Thompson,

925 F.2d 234, 235–36 (8th Cir. 1991).

That § 4A1.1(d) applies to a defendant on

“escape status” clarifies the point. Although

an escapee ceases to serve his sentence—

which is tolled until recapture—he remains

3 See also United States v. Alba-Flores, 577 F.3d 1104, 1111

(9th Cir. 2009) (holding that defendant was “‘under a criminal

justice sentence’ . . . because he was then serving an actual term

of probation” (emphasis added)); United States v. LizarragaCarrizales, 757 F.3d 995, 1000 (9th Cir. 2014) (holding that §

4A1.1(d) applied to defendant “serving a criminal justice

sentence”); United States v. Yepez, 704 F.3d 1087, 1099 (9th Cir.

2012) (Wardlaw, J., dissenting) (explaining that § 4A1.1(d)

requires judges to “determine whether a defendant is serving a

sentence”); Beverly G. Dyer, Revising Criminal History: Model

Sentencing Guidelines §§4.1-4.2, 18 FED. SENT. R. 373, 375 n.7

(June 2006)(explaining that § 4A1.1(d) applies to “any criminal

justice sentence that the defendant is still serving” (emphasis

added)).

21a

“under a requirement to serve [that]

sentence.” See Damon, 127 F.3d at 147. Thus,

the Guidelines make clear that although an

escapee is no longer “under” his sentence in

the usual sense—that is, by being subject to

the punishment imposed—he is still “under”

that punishment because he has not been

excused from serving it. Cf. United States v.

Phipps, 68 F.3d 159, 163 (7th Cir. 1995)

(explaining in the context of a related

guideline that “work release, furlough, and

escape status all are periods of freedom that

are supposed to be followed by time behind

bars, with a guard outside the door”); United

States v. Buchanan, 638 F.3d 448, 453 (4th

Cir. 2011) (explaining the “strong federal

policy disfavoring fugitives” that “arises from

the ‘deeply rooted’ maxim ‘that no man may

take advantage of his own wrong.’” (quoting

Glus v. Brooklyn East. Dist. Term., 359 U.S.

231, 232 (1959)).

And that observation points to a broader

structural truth about the Guidelines: in

general, where § 4A1.1(d) is supposed to apply

to a defendant who is not currently serving his

sentence, the Guidelines expressly say so. See

United States v. Herrera, 974 F.3d 1040, 1048

(9th Cir. 2020)(interpreting the Guidelines by

applying the “well-accepted” rule “that ‘a

negative inference may be drawn from the

exclusion of language from one statutory

provision that is included in other provisions

of the same statute’” (quoting Hamdan v.

Rumsfeld, 548 U.S. 557, 578 (2006)). In

addition to identifying “escape status” as a

22a

“criminal justice sentence,” for example, §

4A1.1(d) also expressly applies to sentences

stayed pending appeal, U.S.S.G § 4A1.2(l),

outstanding violation warrants “even if [the]

sentence would have expired absent such

warrant,” id. § 4A1.2(m), and to defendants

who fail to report for service of a sentence, id.

§ 4A1.2(n). Those provisions support a

“negative inference” that unless stated

otherwise, § 4A1.1(d) does not apply to a

defendant who is not serving or under an

obligation to serve his sentence. See Herrera,

974 F.3d at 1048. And since the Guidelines

nowhere mention circumstances remotely

analogous to those at issue here, that

inference ought to apply.

Finally, the purposes served by § 4A1.1(d) do

not support its application here. See, e.g.,

Franco-Flores, 558 F.3d at 981 (applying §

4A1.1(d) in part because doing so “comport[ed]

with the U.S. Sentencing Guidelines’

expressed purpose[s]”). This Court has

explained that “Sections 4A1.1(a)–(c) correlate

to the seriousness of a prior offense, while

section 4A1.1(d) addresses, in part, the

recency of the crime.” United States v.

McCrudden, 894 F.2d 338, 339 (9th Cir. 1990);

see also United States v. Pearson, 312 F.3d

1287, 1291 (9th Cir. 2002) (Berzon, J.,

dissenting) (explaining that § 4A1.1(d)

provides a “measure of recency”). In other

words, the provision punishes “an offender

who again violates the law before fully serving

his prior punishment.” McCrudden, 894 F.2d

at 339. But here, the Arizona statute did not

23a

allow Appellant to fully serve his prior

punishment. As Defendant points out, by the

time he illegally reentered in June 2016, his

sentence of “2.5 years custody” would have

been more than fully served. Indeed, by the

majority’s logic, even if Appellant had illegally

reentered decades after his release, he would

still be subject to the two-point enhancement.

That seems to go well beyond § 4A1.1(d)’s

focus on the “recency of the crime.” See id.

Nor does Appellant’s early release reflect a

judgment about the seriousness of his offense.

See U.S.S.G. § 4A1.1, Background (suggesting

that the criminal history categories measure

“past crime seriousness”). In fact, just the

opposite: more serious offenders were

precluded from release under the statute. See

Ariz. Rev. Stat. § 41-1604.14 (prohibiting

those convicted of class one and class two

felonies from being eligible) (repealed Aug. 6,

2016). As Appellant explains, at its core

Arizona’s program was a cost-saving measure

designed to avoid “the cost of incarcerating

[aliens] for the entirety of their sentence.” And

as the government concedes, the repeal of that

program “was intended to ensure inmates

subject to deportation served more, not less, of

their sentences.” (emphasis added). In short,

Appellant’s early release was no indication of

his “past crime seriousness.” See U.S.S.G.

4A1.1, Background. As the Second Circuit

observed in a related context, “[i]f the duration

of an indefinite probation term were

determined by some authority other than the

sentencing court (such as the State’s

24a

department of probation), it might be argued

that . . . [it] did not reflect the severity of the

sentence as viewed by the sentencing court

and therefore should not qualify” as a

countable prior sentence. See United States v.

Tomasi, 313 F.3d 653, 658 (2d Cir. 2002). That

reasoning applies well here.

The majority argues that Appellant was under

a criminal justice sentence because he was

“subject to any condition that related to a

‘custodial or supervisory component’ of his

sentence.” But it cites no authority for such a

rule, which at any rate finds no support in the

text. A “criminal justice sentence” is certainly

“a sentence . . . having a custodial or

supervisory component,” U.S.S.G. § 4A1.1(d),

cmt. 4, but the Guidelines nowhere suggest

that a defendant is “under” such a sentence if

he is “subject to any condition related to” it.

The majority also points to several cases that

it claims support its position, but each involve

a defendant who was either serving or

obligated to serve his sentence at the time of

his federal offense. In Ramirez-Sanchez, for

example, the defendant was serving a threeyear term of probation when he illegally

reentered the country. 383 F.3d at 979–81

(holding that Appellant was under a criminal

justice sentence because he had been

“sentenced to a term of ‘probation,’” and was

still “on probation when he commit[ed] the

instant offense”); United States v. RamirezSanchez, Defendant-Appellant’s Opening

Brief, 2002 WL 32102836, *4 (May 21, 2002)

25a

(noting that defendant was sentenced to “3

years probation, 83 days custody, credit for

time served”). Likewise, in Gonzalez, the

defendant was serving a fixed term of

nonrevocable parole at the time of his illegal

reentry. 739 F.3d at 423–24. And in

McCrudden, the defendant was serving a twoyear term of unsupervised probation at the

time of his offense. 894 F.2d at 339.4 Those

cases are not only distinguishable, then, but in

fact support the very argument made here.7

A “criminal justice sentence” is, at its

foundation, “a sentence.” U.S.S.G. § 4A1.1(d),

cmt. 4; see also Antonin Scalia and Bryan A.

Garner, Reading Law: The Interpretation of

Legal Texts § 36, at 232 (2012) (“[T]he word

being defined is the most significant element

of the definition’s context . . . .”). That is, it is

“the punishment imposed on a criminal

wrongdoer” by a “judgment that a court

formally pronounces.” SENTENCE, Black’s

Law Dictionary (11th ed. 2019). But as in most

jurisdictions, Arizona courts are not

authorized to impose indefinite punishments.

As relevant here, a “sentence of imprisonment

for a felony shall be a definite term of years . .

. [under] the custody of the state department

of corrections.” Ariz. Rev. Stat. § 13-701

(emphasis added). Appellant’s sentence was

“2.5 years custody,” which was the term

4 The opinion in Franco-Flores, 558 F.3d at 981–82, on which

the majority also relies, does not state whether the deferred

sentence at issue was for a fixed period. Notably, however, the

defendant there was subject to the express provision regarding

violation warrants, discussed above. See U.S.S.G. § 4A1.2(m).

26a

required by law for his offense and status. See

id. § 13-702. If Appellant’s early conditional

release was a part of that punishment, it could

only last for “2.5 years” and would have

expired well before his illegal reentry; if it was

not a punishment at all, it could not, by

definition, be a “criminal justice sentence.”

Either way, § 4A1.1(d) would be inapplicable.

I respectfully dissent.

27a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United

America,

States

vs.

Jose Yobani MadridBecerra

of JUDGMENT IN A

CRIMINAL CASE

(For Offenses

Committed On or After

November 1, 1987)

No. CR-19-01067-PHXDJH

Brandon Nelson Cotto

(CJA)

Attorney for Defendant

USM#: 21254-508 ICE# A087545876

THE DEFENDANT ENTERED A PLEA OF guilty

on 10/15/2019 to the Indictment.

ACCORDINGLY,

THE

COURT

HAS

ADJUDICATED THAT THE DEFENDANT IS

GUILTY OF THE FOLLOWING OFFENSE(S):

violating Title 8, U.S.C. §1326(a), Reentry of Removed

Alien, with sentencing enhancement pursuant to Title

8, U.S.C. §1326(b)(1), a Class C Felony offense, as

charged in the Indictment.

IT IS THE JUDGMENT OF THIS COURT THAT

the defendant is committed to the custody of the

28a

Bureau of Prisons for a term of TWENTY-SEVEN

(27) MONTHS, with credit for time served. Upon

release from imprisonment, the defendant shall be

placed on supervised release for a term of THREE (3)

YEARS.

CRIMINAL MONETARY PENALTIES

The defendant shall pay to the Clerk the following

total criminal monetary penalties:

SPECIAL ASSESSMENT: $100.00 FINE: WAIVED

RESTITUTION: N/A

The Court finds the defendant does not have the

ability to pay a fine and orders the fine waived.

The defendant shall pay a special assessment of

$100.00 which shall be due immediately.

If incarcerated, payment of criminal monetary penalties are due

during imprisonment at a rate of not less than $25 per quarter

and payment shall be made through the Bureau of Prisons'

Inmate Financial Responsibility Program. Criminal monetary

payments shall be made to the Clerk of U.S. District Court,

Attention: Finance, Suite 130, 401 West Washington Street, SPC

1, Phoenix, Arizona 85003-2118. Payments should be credited to

the various monetary penalties imposed by the Court in the

priority established under 18 U.S.C. § 3612(c). The total special

assessment of $100.00 shall be paid pursuant to Title 18, United

States Code, Section 3013 for the Indictment.

Payments shall be applied in the following order: (1) assessment,

(2) restitution principal, (3) restitution interest, (4) AVAA

assessment, (5) fine principal, (6) fine interest, (7) community

29a

restitution, (8) JVTA assessment, (9) penalties, (10) costs,

including cost of prosecution and court costs.

Any unpaid balance shall become a condition of supervision and

shall be paid within 90 days prior to the expiration of

supervision. Until all restitutions, fines, special assessments and

costs are fully paid, the defendant shall immediately notify the

Clerk, U.S. District Court, of any change in name and address.

The Court hereby waives the imposition of interest and penalties

on any unpaid balances.

SUPERVISED RELEASE

It is ordered that while on supervised release, the

defendant must comply with the mandatory and

standard conditions of supervision as adopted by this

court, in General Order 17-18, which incorporates the

requirements of USSG §§ 5B1.3 and 5D1.2. Of

particular importance, the defendant must not

commit another federal, state, or local crime during

the term of supervision. Within 72 hours of sentencing

or release from the custody of the Bureau of Prisons

the defendant must report in person to the Probation

Office in the district to which the defendant is

released. The defendant must comply with the

following conditions:

MANDATORY CONDITIONS

1) You must not commit another federal, state or local

crime.

2) You must not unlawfully possess a controlled

substance. The use or possession of marijuana, even

with a physician's certification, is not permitted.

30a

3) You must refrain from any unlawful use of a

controlled substance. The use or possession of

marijuana, even with a physician's certification, is not

permitted. Unless suspended by the Court, you must

submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests

thereafter, as determined by the court.

STANDARD CONDITIONS

1) You must report to the probation office in the

federal judicial district where you are authorized to

reside within 72 hours of sentencing or your release

from imprisonment, unless the probation officer

instructs you to report to a different probation office

or within a different time frame.

2) After initially reporting to the probation office, you

will receive instructions from the court or the

probation officer about how and when you must report

to the probation officer, and you must report to the

probation officer as instructed.

3) You must not knowingly leave the federal judicial

district where you are authorized to reside without

first getting permission from the court or the

probation officer.

4) You must answer truthfully the questions asked by

your probation officer.

5) You must live at a place approved by the probation

officer. If you plan to change where you live or

anything about your living arrangements (such as the

people you live with), you must notify the probation

officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to

31a

unanticipated circumstances, you must notify the

probation officer within 72 hours of becoming aware of

a change or expected change.

6) You must allow the probation officer to visit you at

any time at your home or elsewhere, and you must

permit the probation officer to take any items

prohibited by the conditions of your supervision that

he or she observes in plain view.

7) You must work full time (at least 30 hours per

week) at a lawful type of employment, unless the

probation officer excuses you from doing so. If you do

not have full-time employment you must try to find

full-time employment, unless the probation officer

excuses you from doing so. If you plan to change where

you work or anything about your work (such as your

position or your job responsibilities), you must notify

the probation officer at least 10 days before the

change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated

circumstances, you must notify the probation officer

within 72 hours of becoming aware of a change or

expected change.

8) You must not communicate or interact with

someone you know is engaged in criminal activity. If

you know someone has been convicted of a felony, you

must not knowingly communicate or interact with

that person without first getting the permission of the

probation officer.

9) If you are arrested or questioned by a law

enforcement officer, you must notify the probation

officer within 72 hours.

32a

10) You must not own, possess, or have access to a

firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was designed,

or was modified for, the specific purpose of causing

bodily injury or death to another person such as

nunchakus or tasers).

11) You must not act or make any agreement with a

law enforcement agency to act as a confidential

human source or informant without first getting the

permission of the court.

12) If the probation officer determines that you pose a

risk to another person (including an organization), the

probation officer may require you to notify the person

about the risk and you must comply with that

instruction. The probation officer may contact the

person and confirm that you have notified the person

about the risk.

13) You must follow the instructions of the probation

officer related to the conditions of supervision.

SPECIAL CONDITIONS

The following special conditions are in addition to the

conditions of supervised release or supersede any

related standard condition:

1) If deported, you must not re-enter the United States

without legal authorization.

THE

DEFENDANT

IS

ADVISED

OF

DEFENDANT'S RIGHT TO APPEAL BY FILING

A NOTICE OF APPEAL IN WRITING WITHIN 14

DAYS OF ENTRY OF JUDGMENT.

33a

The Court may change the conditions of probation or

supervised release or extend the term of supervision,

if less than the authorized maximum, at any time

during the period of probation or supervised release.

The Court may issue a warrant and revoke the

original or any subsequent sentence for a violation

occurring during the period of probation or supervised

release.

The Court orders commitment to the custody of the

Bureau of Prisons.

The defendant is remanded to the custody of the

United States Marshal.

Date of Imposition of Sentence: Monday, December

16, 2019

Dated this 16th day of December, 2019.

Honorable Diane J. Humetewa

United States District Judge