United States v. Urias-Escobar

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-50553
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE MANUEL URIAS-ESCOBAR,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
January 23, 2002
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jose Urias-Escobar appeals his seventy-
month sentence for illegal reentry into the
United States. He argues that the district
court erred in concluding that his earlier, state
conviction for misdemeanor assault was an ag-
gravated felony that warranted an enhanced
sentence under U.S.S.G. § 2L1.2 and 8 U.S.C.
§ 1101(a)(43)(F). Finding no error regarding
this issue of first impression, we affirm.
I.
Urias-Escobar, a native of El Salvador, first
entered the United States in 1990. In 1994, he
pleaded guilty of assault with bodily injury, a
misdemeanor offense under Texas law. The
state court sentenced him to one year in jail,
suspended the sentence, and placed him on
probation for one year. He was deported in
1995 and again in 1998.
In September 2000, after he again was

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found in Texas, Urias-Escobar pleaded guilty
of illegally reentering the United States after
deportation pursuant to 8 U.S.C. § 1326-
(b)(2).1 The presentence report (“PSR”) con-
cluded that his state misdemeanor conviction
constituted an aggravated felony under
U.S.S.G. § 2L1.2 and 8 U.S.C. § 1101(a)-
(43)(F) and, accordingly, recommended that
his offense level be increased sixteen points.
After a three-level downward adjustment for
acceptance of responsibility, Urias-Escobar
faced a guideline range of seventy to eighty-
seven months’ imprisonment.
Urias-Escobar objected to the PSR, arguing
that his misdemeanor conviction could not, by
definition, be an aggravated felony, and thus
the sixteen-level enhancement was error.
Without that enhancement, his guideline range
would have been nine to fifteen months’ im-
prisonment. The court overruled the objection
and imposed a seventy-month sentence.
II.
Urias-Escobar challenges the district
court’s interpretation of §§ 1326(b)(2), 1101-
(a)(43)(F), and 2L1.2. These are questions of
law that we review de novo.2
Courts are bound to follow each sentencing
guideline, Mistretta v. United States, 488 U.S.
361, 391 (1989), and accompanying policy
statements, Williams v. United States, 503
U.S. 193, 199-201 (1992). The guidelines’
commentary is given controlling weight if it is
not plainly erroneous or inconsistent with the
guidelines. Stinson v. United States, 508 U.S.
36, 42-45 (1993).
Section 2L1.2 sets the offense level for
violations of § 1326(b). Subsection (a)
provides a base offense level of 8, and
subsection (b)(1) mandates a sentencing
enhancement “[i]f the defendant previously
was deported after a criminal conviction”:
(A) If the conviction was for an
aggravated felony, increase by 16 levels.
(B) If the conviction was for (i) any
other felony, or (ii) three or more
misdemeanor crimes of violence or
misdemeanor controlled substance
offenses, increase by 4 levels.
The guidelines commentary explains,
“‘Aggravated felony,’ is defined at 8 U.S.C.
§ 1101(a)(43) . . . . ‘Felony offense’ means
any federal, state, or local offense punishable
by imprisonment for a term exceeding one
year.” Id., cmt., n.1. Section 1101(a)(43)(F),
in turn, defines “aggravated felony” as “a
crime of violence . . . for which the term of im-
prisonment at2 least one year.” 8 U.S.C.
§ 1101(a)(43)(F).3 Id.
III.
Urias-Escobar argues that because he was
convicted of only misdemeanor assault, that
offense cannot, by definition, be an aggravated
1 Title 8 U.S.C. § 1326(b)(2) states in relevant
part that for any alien “whose removal was
subsequent to a conviction for commission of an
aggravated felony, such alien shall be fined under
such Title, imprisoned not more than 20 years.”
2 United States v. Santos-Riviera, 183 F.3d
367, 369 (5th Cir. 1999) (de novo review for sta-
tutory construction); United States v. Velazquez-
Overa, 100 F.3d 418, 420 (5th Cir. 1996) (de novo
review for interpretation of sentencing guideline).
3 Footnote two in the statute notes that the word
“is” probably should be included.

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felony under § 2L1.2.4 Although this is an is-
sue of first impression in this circuit, five other
circuits have addressed it and agree that under
§ 2L1.2, a misdemeanor can be an “aggravated
felony,” even though it is not a felony at all.5
Finding their reasoning persuasive, we adopt it
as well.
Title 8 U.S.C. 1101(a)(43)(F) defines “ag-
gravated felony” as “a crime of violence . . .
for which the term of imprisonment [is] at least
one year.” “Under the plain language of this
definition, there is no requirement that the of-
fense actually have been a felony, as that term
is conventionally understood.” Wireko, 211
F.3d at 835. In defining “aggravated felony,”
Congress was defining a term of art, one that
includes all violent crimes punishable by one
year’s imprisonment, including certain violent
misdemeanors. Graham, 169 F.3d at 792.
Though Urias-Escobar is correct that
federal law traditionally defines a felony as a
crime punishable by over one year’s
imprisonment, see 18 U.S.C. § 3559(a);
U.S.S.G. 2L1.2, cmt. 1, the plain language of
this statute says otherwise:
Congress has the power to define the
punishment for the crime of reentering
the country after deportation . . . . Our
decision would be much simpler if
Congress had used the term “aggravated
offense.” However, rather than making
the underlying offense conform to the
label Congress erroneously used to de-
scribe section 1101(a)(43) as amended,
we give effect to the definition of the
underlying offense and ignore the label.
Graham, 169 F.3d at 792-93.
Whatever the wisdom of Congress’s
decision to alter the historic one-year line
between a misdemeanor and a felony, the
statute is unambiguous in its sweep.6 The
judgment of sentence, accordingly, is
AFFIRMED.
4 Urias does not contest that his conviction was
for a “violent” offense as required by statute. He
also concedes that although his one-year sentence
was suspended, it still fulfills the one-year
requirement.
5 Guerrero-Perez v. INS, 242 F.3d 727 (7th
Cir. 2001), aff’d on reh’g, 256 F.3d 546 (7th Cir.
2001); United States v. Christopher, 239 F.3d
1191 (11th Cir.), cert. denied, 122 S. Ct. 178
(2001); United States v. Pacheco, 225 F.3d 148
(2d Cir. 2000), cert. denied, 121 S. Ct. 2246
(2001); Wireko v. Reno, 211 F.3d 833 (4th Cir.
2000); United States v. Graham, 169 F.3d 787 (3d
Cir. 1999).
6 Finding no ambiguity in the statute, we have
no occasion to address Urias-Escobar’s rule of len-
ity argument.

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