At page 1039 Interpreting term of imprisonment for downward departure24 citing casesholding that “the term of imprisonment” for purposes of Application Note 5 is the sentence imposed by the state court and that it shall not be decreased to reflect a suspension of any part of the sentence
- United States v. Abeyta, 877 F.3d 935 (10th Cir. 2017).published“We review the district court’s interpretation and application of the Sentencing Guidelines de novo.” United States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000) (quoting United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039…
- United States v. Miller, 318 F. App'x 701 (10th Cir. 2009).unpublishedUnited States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999) Miller summarizes his arguments as follows: Appellant argues that certain sentencing enhancements are constitutionally infirm and unreasonable, specifically the 5 leve…
- United States v. Mendoza-Guardiola, 184 F. App'x 791 (10th Cir. 2006).unpublishedUnited States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999).
- United States v. Peterson, 312 F.3d 1300 (10th Cir. 2002).publishedUnited States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999).
- United States v. Aguilar-Bautista, 49 F. App'x 855 (10th Cir. 2002).unpublishedUnited States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999).
- United States v. Blanchett, 41 F. App'x 181 (10th Cir. 2002).unpublishedUnited States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999).
- United States v. Garcia-Armenta, 33 F. App'x 373 (10th Cir. 2002).unpublishedWe followed Reyes-Castro in a later case, United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039-40 (10th Cir.1999), which involved the determination of whether a Utah conviction resulting in an indeterminate sentence “‘not to exceed five…
- United States v. Roberto Echavarria-Escobar, Aka, Roberto Escobar Aka, Baudilo Echeveria Aka, Roberto Car Escobar-Rodriguez, 270 F.3d 1265 (9th Cir. 2001).publishedU.S.C. § 1101(a)(48)(B), not U.S.S.G. § 4A1.2(b) applies for the purposes of defining ‘term of imprisonment’ in U.S.S.G. § 2L1.2.” Tejeda-Perez, 199 F.3d at 982 ; see also United States v. McKenzie, 193 F.3d 740, 742 (3d Cir.1999) (same);…
- United States v. Tisdale, 248 F.3d 964 (10th Cir. 2001).publishedUnited States v. Contreras, 210 F.3d 1151, 1152 (10th Cir.2000); United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999).
- United States v. Barajas-Ruiz, No. 99-4171 (10th Cir. Dec. 21, 2000).unpublishedUnited States v. Chavez-Valenzuela , 170 F.3d 1038, 1039 (10th Cir. 1999).
Show 12 more citing cases
- United States v. Martinez-Villalva, 232 F.3d 1329 (10th Cir. 2000).published“We review the district court’s interpretation and application of the Sentencing Guidelines de novo.” United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999).
- United States v. Holguin-Enriquez, 120 F. Supp. 2d 969 (D. Kan. 2000).publishedThe Tenth Circuit has rejected this theory in United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir. 1999), finding that the “term of imprisonment” is the sentence imposed by the court, not the time actually served.
- United States v. Oscar Maldonado-Ramirez, 216 F.3d 940 (11th Cir. 2000).publishedSee United States v. Tejedor-Perez, 199 F.3d 981, 982 (8th Cir.1999) (applying definition of “term of imprisonment” in § 1101(a)(48) to clarify § 1101(a)(43) for purposes of the Sentencing Guidelines’ “aggravated felony” offense level enha…
- United States v. Oscar Maldonado-Ramirez, No. 99-11190 (11th Cir. June 26, 2000).publishedSee United States v. Tejeda-Perez, 199 F.3d 981, 982 (8th Cir.1999) (applying definition of "term of imprisonment" in § 1101(a)(48) to clarify § 1101(a)(43) for purposes of the Sentencing Guidelines' "aggravated felony" offense level enhan…
- United States v. Underwood, No. 99-3346 (10th Cir. June 12, 2000).unpublished“We review the district court’s interpretation and application of the Sentencing Guidelines de novo.” United States v. Chavez-Valenzuela , 170 F.3d 1038, 1039 (10th Cir. 1999).
- United States v. Contreras, 210 F.3d 1151 (10th Cir. 2000).publishedUnited States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999).
- United States v. Ignacio Tejeda-Perez, 199 F.3d 981 (8th Cir. 1999).publishedSee Banda-Zamora, 178 F.3d at 730 ; United States v. McKenzie, 193 F.3d 740, 742 (3d Cir.1999); United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999).
- United States v. McKenzie, No. 98-5490 (3d Cir. Sept. 22, 1999).Finally, we point out that our result is in accord with United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039-40 (10th Cir. 1999), which the parties indicate is the only published opinion directly on point. 4 III.
- United States v. David Christopher McKenzie, 193 F.3d 740 (3d Cir. 1999).publishedFinally, we point out that our result is in accord with United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039-40 (10th Cir.1999), which the parties indicate is the only published opinion directly on point.
- United States v. Marquez-Gallegos, 217 F.3d 1267 (10th Cir. 2000).published(holding that “the term of imprisonment” for purposes of Application Note 5 is the sentence imposed by the state court and that it shall not be decreased to reflect a suspension of any part of the sentence)
- United States v. Rodriguez-Salas, No. 99-50866 (5th Cir. Feb. 15, 2000).unpublishedSee United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039-40 (10th Cir. 1999).
- United States v. Sierra-Castillo, 405 F.3d 932 (10th Cir. 2005).publishedSee, e.g., United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999); United States v. Valdez, 158 F.3d 1140, 1141-42 (10th Cir.1998); United States v. James, 157 F.3d 1218, 1219 (10th Cir.1998).
At page 1040 Measuring indeterminate sentences for statutory compliance7 citing cases“We conclude that Chavez-Valenzuela’s term of imprisonment did exceed one year, and was in fact five years, because we measure the term of imprisonment for an indeterminate sentence by the possible maximum term of imprisonment.”
- United States v. Rodriguez-Garcia, 89 F. App'x 158 (10th Cir. 2004).unpublishedUnited States v. Chavez-Valenzuela, 170 F.3d 1038, 1040 (10th Cir.1999).
- United States v. Dennis Llewellyn Tappin, 205 F.3d 536 (2d Cir. 2000).published By necessary implication, therefore, the Sentencing Commission intended that all other cases — including Tappin’s, since he had more than one previous felony conviction and therefore did not meet the first enumerated criterion — should be…
- United States v. Jose Antonio Frias A/K/A Jose Antonio Fria Jose Antonio Frias, 338 F.3d 206 (3d Cir. 2003).publishedSee United States v. Chavez-Valenzuela, 170 F.3d 1038, 1040 (10th Cir.1999).
- United States v. Frias, No. 02-3688 (3d Cir. July 30, 2003).publishedSee United States v. Chavez- Valenzuela, 170 F.3d 1038, 1040 (10th Cir. 1998).
- United States v. Manuel Rodriguez-Arreola, 313 F.3d 1064 (8th Cir. 2002).publishedSee United States v. Chavez-Valenzuela, 170 F.3d 1038, 1040 (10th Cir.1999).
- United States v. Rodriguez-Arreola, No. 02-1838 (8th Cir. Dec. 23, 2002).publishedSee United States v. Chavez-Valenzuela, 170 F.3d 1038, 1040 (10th Cir. 1998).
- United States v. Rodriguez-Rojo, 175 F. App'x 982 (10th Cir. 2006).unpublishedIn doing so, we also take into account any portion of the sentence that was suspended. 8 U.S.C. § 1101 (a)(48)(B); see also United States v. Chavez-Valenzuela, 170 F.3d 1038, 1040 (10th Cir.1999).
finding § 2L1.2, comment. (n. 5) inapplicable to a motion for downward departure when one of the three stated elements is not present
- Summers, Lynn M., In the Matter of:, 196 F.3d 1338 (11th Cir. 1999).published (finding § 2L1.2, comment. (n. 5) inapplicable to a motion for downward departure when one of the three stated elements is not present)
- United States v. Alfaro-Zayas, 196 F.3d 1338 (11th Cir. 1999).published(finding § 2L1.2, comment, (n. 5) inapplicable to a motion for downward departure when one of the three stated elements is not present)
At page 1038 looking to 8 U.S.C. § 1101 (a)(48) rather than U.S.S.G. § 4A1.2(b) for the appropriate definition of “term of imprisonment,” as used in Application Note 5 to § 2L1.21 citing case
- United States v. Saldana-Duarte, No. 99-4004 (10th Cir. May 3, 2000).unpublished(looking to 8 U.S.C. § 1101 (a)(48) rather than U.S.S.G. § 4A1.2(b) for the appropriate definition of “term of imprisonment,” as used in Application Note 5 to § 2L1.2)
Other citing cases
- United States v. Gomez-Salamanca, 34 F. App'x 878 (4th Cir. 2002).unpublished
- United States v. Yanez-Huerta, 207 F.3d 746 (5th Cir. 2000).published
- United States v. Cadena-Guerrero, No. 98-51212 (5th Cir. Dec. 28, 1999).unpublished
v.
Ernesto CHAVEZ-VALENZUELA, Also Known as Ernesto Chavez-Quintero, Defendant-Appellant
On September 24, 1997, the government charged Ernesto Chavez-Valenzuela with unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326, and filed a Notice of Sentencing Enhancement due to a prior “ag[*1039] gravated felony” for possession of a controlled substance. Chavez-Valenzuela subsequently entered a guilty plea to the illegal entry charge, and moved for a downward departure under United States Sentencing Guidelines (“USSG”) § 2L1.2, comment, n.5 (“Application Note 5”). The district court denied the motion, finding that Application Note 5 was inapplicable. Chavez-Valenzuela appeals. We affirm.
We have jurisdiction to review the district court’s legal conclusion regarding the applicability of Application Note 5. See United States v. Castillo, 140 F.3d 874, 887-88 (10th Cir.1998). We review the district court’s interpretation and application of the Sentencing Guidelines de novo. See United States v. Pappert, 112 F.3d 1073, 1078 (10th Cir.1997).
USSG § 2L1.2(b)(l)(A) mandates a sentencing enhancement of 16 levels for unlawful reentry after a criminal conviction for an aggravated felony. However, Application Note 5 provides that if
(A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed for such offense did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony.
For possession of a controlled substance, a Utah state court sentenced Chavez-Valenzuela to a term “not to exceed five years,” but stayed the sentence and placed him on 36 months’ probation on terms which included 45 days in jail. The district court, finding that Chavez-Valenzuela’s “term of imprisonment” under criterion (C) was five years, the maximum of his indeterminate sentence, [1] held Application Note 5 to be inapplicable.
On appeal, Chavez-Valenzuela contends that his “term of imprisonment” was 45 days, his actual time served. He analogizes “term of imprisonment” in Application Note 5 to “sentence of imprisonment” in USSG § 4A1.2(b). Although § 4A1.2(b)(l) defines “sentence of imprisonment” for purposes of computing criminal history as “the maximum sentence imposed,” § 4A1.2(b)(2) specifically excludes any portion of the sentence that was suspended. Chavez-Valenzuela argues that the portion of his sentence not suspended, and therefore his “term of imprisonment,” was forty-five days.
We disagree. As the government points out, the more appropriate definition of “term of imprisonment” can be found at 8 U.S.C. § 1101(a)(48), within the definitional section of Chapter 12 — the “Immigration and Nationality” chapter of Title 8 which encompasses Chavez-Valenzuela’s crime of illegal reentry under § 1326. § 1101(a)(48) provides:
Any reference to a term of imprisonment or sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that sentence of imprisonment in whole or in part.
In addition to this statutory definition, other circuits which have addressed the phrase “term of imprisonment” in the context of a prior version of § 2L1.2 [2] have taken it to mean the sentence imposed, regardless of any suspension, rather than the time actually served. See United States v. Galicia-Delgado, 130 F.3d 518, 520 (2d Cir.1997); United States v. Cordova-Beraud, 90 F.3d 215, 218-19 (7th Cir.1996); United States v. Ramos-Garcia, 95 F.3d 369, 371-72 (5th Cir.1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 751, 136 L.Ed.2d 688 (1997). Thus, we hold that Chavez-Valenzuela’s “term of imprisonment” was[*1040] the sentence imposed by the state court, not the 45 days he actually served.
As the state court sentenced Chavez-Valenzuela to a term of imprisonment “not to exceed five years,” we need to decide whether this indeterminate sentence “did not exceed one year” as required by criterion (C) of Application Note 5. We conclude that Chavez-Valenzuela’s term of imprisonment did exceed one year, and was in fact five years, because we measure the term of imprisonment for an indeterminate sentence by the possible maximum term of imprisonment. See United States v. Reyes-Castro, 13 F.3d 377, 379-80 (10th Cir.1993) (finding that indeterminate sentence “not to exceed five years” was term of imprisonment of five years); see also Nguyen v. I.N.S., 53 F.3d 310, 311 (10th Cir.1995) (approving Board of Immigration Appeals’ measurement of indeterminate sentence by possible maximum term of imprisonment); Galicia-Delgado, 130 F.3d at 520-21 (upholding § 2L1.2 enhancement on ground that sentence of two and a half to seven and a half years constituted term of imprisonment of at least five years, and observing that “for more than a century, sentences for variable or unspecified periods have been treated as sentences for the maximum period specified”); Cordova-Beraud, 90 F.3d at 218-20 (upholding § 2L1.2 enhancement on ground that indeterminate sentence of two to ten years constituted term of imprisonment of at least five years because “the upper bound of an indeterminate sentence” is controlling); United States v. Quinonez-Terrazas, 86 F.3d 382, 382-83 (5th Cir.1996) (upholding § 2L1.2 enhancement on ground that sentence of four to ten years constituted term of imprisonment of at least five years).
Since Chavez-Valenzuela’s five-year term of imprisonment exceeded the one-year maximum specified in Application Note 5, the district court properly refused to consider whether to grant Chavez-Valenzuela a downward departure under that provision.
The judgment of the district court is therefore AFFIRMED.
. An indeterminate sentence is a "sentence to imprisonment for the maximum period defined by law, subject to termination ... at any time after service of the minimum period.” United States v. Reyes-Castro, 13 F.3d 377, 380 (10th Cir.1993) (quoting Black’s Law Dictionary 694 (5th ed.1979)).
. The present version of § 2L1.2 became effective on November 1, 1997. See USSG Manual, App. C, amend. 562 (1998). The prior version did not contain the current Application Note 5, but did contain the phrase "term of imprisonment" in another application note, one defining aggravated felony to include "any crime of violence ... for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years.” Id. (quoting deleted Application Note 7).