United States v. 2007-04-23 | 06-50276 | USA VOLMOS-ESPARZA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 06-50276
Plaintiff-Appellee, D.C. No.
v.  CR-04-00637-JAH
LEOBARDO OLMOS-ESPARZA, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted February 7, 2007*
Pasadena, California
Filed April 24, 2007
Before: Thomas G. Nelson, Eugene E. Siler, Jr.,** and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
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COUNSEL
James Fife, Federal Defenders of San Diego, Inc., San Diego,
California, for the defendant-appellant.
Michelle P. Jennings, Assistant U.S. Attorney, San Diego,
California, for the plaintiff-appellee.
OPINION
HAWKINS, Circuit Judge:
Leobardo Olmos-Esparza (“Olmos-Esparza”), convicted of
illegal reentry following deportation, appeals his sentence on
remand following a full post-Booker1 resentencing. In an issue
of first impression in this circuit, he contends that the district
court erred by considering his convictions from 1972 and
1976 in calculating sentencing enhancements under § 2L1.2
of the 2003 Sentencing Guidelines. We join the Tenth and
Eleventh Circuits in holding that this section contains no time
limitation on the age of convictions for purposes of calculat-
ing sentencing enhancements.
1United States v. Booker, 543 U.S. 220 (2005).
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FACTS AND PROCEDURAL HISTORY
Olmos-Esparza was found in the United States in Decem-
ber 2003. He eventually admitted he was a Mexican citizen
who had previously been deported and that he lacked author-
ity to be in the United States. He was convicted following a
trial of illegal reentry following deportation in violation of 8
U.S.C. § 1326 and was initially sentenced to 70 months in
custody. He appealed his conviction and sentence to this
court, which affirmed the conviction but remanded his sen-
tence pursuant to United States v. Ameline, 409 F.3d 1073
(9th Cir. 2005) (en banc).
The district court determined that it would have sentenced
Olmos-Esparza differently if it had known the Guidelines
were not mandatory and would have ordered a full re-
sentencing. The Probation Office calculated the sentence in
the same manner as before: a base offense level of eight, a
sixteen-level enhancement for prior alien smuggling and drug
trafficking convictions, and a two-level downward adjustment
for acceptance of responsibility. This resulted again in a
Guideline range of 63-78 months. On remand, Olmos-Esparza
challenged the use of his two prior convictions — sustained
in 1972 and 1976 — for the sixteen-level enhancement, argu-
ing that they should be subject to the fifteen-year time limit
set forth in § 4A1.2 for calculating criminal history points.
The district court rejected this argument, but reviewed all the
factors under 18 U.S.C. § 3553 and sentenced Olmos-Esparza
to 60 months, 10 months shorter than his previous sentence.
STANDARD OF REVIEW
We review a district court’s interpretation of the Guidelines
de novo. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th
Cir. 2005).
DISCUSSION
[1] U.S.S.G. § 2L1.2(a) establishes a base offense level of
eight for unlawfully entering or remaining in the United
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States. If the defendant was previously deported or unlawfully
remained in the United States following certain types of con-
victions, U.S.S.G. § 2L1.2(b)(1) provides for an increase in
sentence based on the type of prior offense:
If the defendant previously was deported, or unlaw-
fully remained in the United States, after —
(A) a conviction for a felony that is (i) a drug traf-
ficking offense for which the sentence imposed
exceeded 13 months; (ii) a crime of violence; (iii) a
firearms offense; (iv) a child pornography offense;
(v) a national security or terrorism offense; (vi) a
human trafficking offense; or (vii) an alien smug-
gling offense, increase by 16 levels;
(B) a conviction for a felony drug trafficking
offense for which the sentence imposed was 13
months or less, increase by 12 levels;
(C) a conviction for an aggravated felony, increase
by 8 levels;
(D) a conviction for any other felony, increase by
4 levels; or
(E) three or more convictions for misdemeanors
that are crimes of violence or drug trafficking
offenses, increase by 4 levels.
Neither the text nor the application notes states that a convic-
tion, as used in this section, must have occurred within a par-
ticular time period for the enhancement to apply. One
application note, however, explicitly states that an “aggra-
vated felony” has the meaning given that term in the immigra-
tion statute — 8 U.S.C. § 1101(a)(43) — but “without regard
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to the date” of the underlying conviction. § 2L1.2, application
n.3(A).2
Olmos-Esparza argues that the application notes are there-
fore ambiguous, since one portion of the commentary
expressly qualifies the temporal scope of prior convictions for
aggravated felonies, but says nothing about age limitations as
to other predicate convictions. He urges us to use the statutory
construction maxim expressio unius est exclusio alterius —
that is, when some statutory provisions expressly mention a
requirement, the omission of that requirement from other stat-
utory provisions implies that the drafter intended the inclusion
of the requirement in some instances but not others. See Long-
view Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th
Cir. 1992). Thus, Olmos-Esparza argues that, because the
application note expressly indicates that convictions for
aggravated felonies are to be considered without regard to the
date of conviction, the other crimes enumerated in
§ 2L1.2(b)(1) do have a restriction on the conviction’s age,
which Olmos-Esparza contends should be imported from
U.S.S.G. § 4A1.2 (the Guideline dictating which convictions
are to be counted for criminal history purposes).3
This precise argument, however, has been considered and
2The application notes to § 2L1.2 also use the phrase “without regard
to the date of the conviction” when cross-referencing the term “sentence
of imprisonment” in Guideline § 4A1.2, but do not include that language
when cross-referencing the term “related cases” as defined in the same
section. § 2L1.2 application nn. 1(B)(vii) & 4(B). Because the determina-
tion of whether cases are related and what constitutes a sentence of impris-
onment have nothing to do with whether there is a time restriction on
some but not other categories of convictions set forth in Section
2L1.2(b)(1), we do not consider either of these ancillary application notes
to be probative of the issue we must decide today.
3Under § 4A1.2(e), if the sentence imposed for a conviction was over
one year and one month, then the conviction is counted for criminal his-
tory purposes if it occurred within fifteen years; all other convictions are
counted if they occurred within ten years.
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rejected by two circuits. United States v. Torres-Duenas, 461
F.3d 1178, 1181-82 (10th Cir. 2006), petition for cert. filed
November 22, 2006 (No. 06-7990); United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1312-13 (11th Cir.), cert.
denied, 126 S. Ct. 457 (2005). We join them today and hold
that U.S.S.G. § 2L1.2 does not contain a time limitation on
the age of prior convictions.
There is certainly no time restriction on the use of prior
convictions within the plain language of § 2L1.2. An ambigu-
ity is created, if at all, by Olmos-Esparza’s urged application
of the expressio unius principle. But that maxim is “a product
of logic and common sense,” and is properly applied only
when it makes sense as a matter of legislative purpose. Long-
view Fibre, 980 F.2d at 1313 (quoting Alcaraz v. Block, 746
F.2d 593, 607-08 (9th Cir. 1984)). The interpretation Olmos-
Esparza advocates would lead to strange results: a conviction
of any age could be considered for “ordinary” aggravated fel-
onies — a mid-level eight point enhancement under § 2L1.2
— but there would be a staleness limit with respect to other
crimes, including ones the Commission has considered to be
more serious, including human smuggling, child pornography,
and terrorism.
[2] Moreover, Olmos-Esparza’s expressio unius argument
actually cuts both ways, because in other Guideline provi-
sions, the Commission explicitly limited the use of prior con-
victions, but did not expressly do so in § 2L1.2(b). For
example, in § 2L1.2 itself, the Commission explicitly limited
the use of crimes committed before a defendant was eighteen
as a predicate for an enhancement. U.S.S.G. § 2L1.2, applica-
tion n.1(A)(iv). As noted above, § 4A1.2(e) also includes
explicit time restrictions on the use of prior convictions when
computing criminal history points. These provisions contrib-
uted to the Eleventh Circuit’s decision to reject the defen-
dant’s argument for implicit limitations: “If the Sentencing
Commission had intended § 2L1.2(b) to mean what [the
defendant] argues, there is no reason the Commission would
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not have written an explicit time restriction into that guide-
line,” just as it did with other Guidelines. Camacho-Ibarquen,
410 F.3d at 1313. “We are more inclined to find that, because
other guidelines sections have explicit time restrictions on the
application of convictions, the omission of such a restriction
in § 2L1.2 means that none was intended for that section.” Id.
[3] Further, the definition of “aggravated felony,” as used
in § 2L1.2 (b)(1)(C) is imported from 8 U.S.C. § 1101(1)(43).
The definition in the immigration context includes foreign
convictions only if the term of imprisonment was completed
within the last fifteen years. We agree with the common sense
reading of the Tenth and Eleventh Circuits — that the Sen-
tencing Commission wished to import into § 2L1.2 the sub-
stantive definition of aggravated felony from the immigration
statute, but not its time limitation on foreign convictions.
Camacho-Ibarquen, 410 F.3d at 1313; see also Torres-
Duenas, 461 F.3d at 1182. In other words, the “without regard
to the date of conviction” language was added to expressly
cancel out a time limitation contained in another context, and
not to implicitly create one in § 2L1.2.4
Olmos-Esparza argues that the time limitation on prior con-
victions from § 4A1.2 (criminal history calculation) should be
imported into § 2L1.2, because, in other situations, this circuit
has looked to § 4A1.2 for guidance in interpreting § 2L1.2.
4Olmos-Esparza suggests this rationale is unpersuasive because the
other crimes listed in § 2L1.2(b)(1)(A) & (B) are also listed as types of
aggravated felonies within 8 U.S.C. § 1101(a)(43), and thus would also
have the potential for an erroneous incorporation of the fifteen-year limit
on foreign convictions contained in that section. However, the other
crimes listed in subsections (A) and (B) are not defined by cross-reference
to § 1101(a)(43); the application notes to § 2L1.2 contain definitions for
these specific offenses. The only one of those that refers back to
§ 1101(a)(43) is “alien smuggling offense,” § 2L1.2 app. n. (1)(B)(I),
which cannot be a violation of the law of a foreign country. See 8 U.S.C.
§ 1101(a)(43)(N) (cross-referencing 8 U.S.C. § 1324(a), which defines
crime as bringing an alien to the United States) (emphasis added); see also
Camacho-Ibarquen, 410 F.3d at 1314 n.2.
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See United States v. Moreno-Cisneros, 319 F.3d 456, 458-59
(9th Cir. 2003) (looking to § 4A1.2’s treatment of the sen-
tence imposed following revocation of probation); United
States v. Ortiz-Gutierrez, 36 F.3d 80, 82 (9th Cir. 1994)
(looking to § 4A1.2’s definition of the term “related cases”).
But this circuit has also specifically noted that § 2L1.2(b) and
§ 4A1.2 intentionally treat prior convictions differently in the
calculation of illegal reentry offense level and criminal his-
tory:
Although both [provisions] determine the impact of
past crimes on a current sentence, each section does
so for a different reason. Thus, the 15-year limit on
criminal history calculations does not signal an
intent to similarly limit the aggravated felony
enhancement under § 2L1.2(b)(2) . . . . In other
words, we find it particularly troublesome to have
illegal aliens returning who are not just illegal aliens,
but also criminals. The criminal history category,
however, serves the different purpose of evaluating
the likelihood that any defendant will commit
another crime in the future.
United States v. Lara-Aceves, 183 F.3d 1007, 1013-14 (9th
Cir. 1999) (quoting United States v. Gonzalez-Mendez, 112
F.3d 1325, 1329 (7th Cir. 1997)), overruled on other grounds
by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.
2001) (en banc).5
5Lara-Aceves was interpreting a prior version of § 2L1.2, which had
only a one-stage enhancement for aggravated felonies and an application
note which mirrored the language of 1101(a)(43) regarding the age of for-
eign convictions. We held that the “commission intended an aggravated
felony to enhance the base offense level regardless of when it was com-
mitted” and that it was not inconsistent for § 2L1.2 to thus treat prior con-
victions differently than in § 4A1.2. 183 F.3d at 1013-14. Because the
Guidelines were subsequently amended, it is not directly controlling in
this case.
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We look to § 4A1.2’s definitions or application notes if it
makes sense in the context of the appeal to interpret language
in another Guideline provision, but the substantive provisions
of § 4A1.2 do not automatically apply outside of that Guide-
line. In fact, after this court looked to § 4A1.2’s definition of
“related cases” in Ortiz-Gutierrez and “sentence imposed” in
Moreno-Cisneros, the Commission amended the application
notes to § 2L1.2 in 2003 to specifically include cross-
references to § 4A1.2 (undercutting any argument that the
§ 4A1.2 provisions automatically apply, as Olmos-Esparza
essentially argues), yet the Commission did not include any
cross-reference to the time limitations on convictions con-
tained in the same section (reinforcing our conclusion that the
Commission did not intend to expressly or implicitly import
these restrictions into § 2L1.2).
[4] In sum, it is apparent that § 2L1.2 on its face contains
no temporal limitation on the prior conviction used to enhance
sentences for illegal reentry. When viewed in context, it is
also clear the Commission did not implicitly mean to create
such a limitation on prior convictions in § 2L1.2, but was
instead expressly eliminating any time limitations contained
in the borrowed definition for “aggravated felony.” The dis-
trict court therefore did not err by enhancing Olmos-Esparza’s
sentence for his prior convictions.
AFFIRMED.
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