United States of America v. GERMAN QUINTANA-GAMEZ, AKA German Quintana

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERMAN QUINTANA-GAMEZ, AKA
German Quintana,
Defendant - Appellant.
No. 14-50208
D.C. No. 2:13-cr-00434-RGK-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted September 3, 2015**
Pasadena, California
Before: GRABER and WATFORD, Circuit Judges, and TUNHEIM,*** Chief
District Judge.
FILED
SEP 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable John R. Tunheim, Chief District Judge for the U.S.
District Court for the District of Minnesota, sitting by designation.

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The government charged German Quintana-Gamez with illegal reentry into
the United States under the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1326(a), (b)(2). Quintana-Gamez moved to dismiss the indictment, alleging that
his prior removal order was invalid because, at the hearing, he was not afforded an
opportunity to seek voluntary departure. The district court denied the motion,
holding that even if Quintana-Gamez had been given a chance to request voluntary
departure, he would have been ineligible for that relief because of his 2001
aggravated felony conviction.
The INA defines “aggravated felony” as including a “crime of violence . . .
for which the term of imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(F). Corporal injury of a spouse, in violation of California Penal
Code § 273.5, is a “crime of violence,” which Quintana-Gamez does not dispute.
“[T]erm of imprisonment,” in turn, refers to the “period of incarceration or
confinement ordered by a court of law regardless of any suspension of the
imposition or execution of that imprisonment.” Id. § 1101(a)(48)(B).
Under these definitions, Quintana-Gamez’s 2001 conviction plainly
constitutes an aggravated felony. He received a suspended sentence of three years’
imprisonment for that conviction. As the INA makes clear, the fact that Quintana-
Gamez actually served only 49 days in jail is irrelevant. That conclusion is

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confirmed by United States v. Echavarria-Escobar, 270 F.3d 1265 (9th Cir. 2001),
where we held that a conviction resulting in an imposed sentence that is
subsequently suspended constitutes an aggravated felony. Id. at 1270–71.
Quintana-Gamez contends that Echavarria-Escobar is at odds with our
decision in United States v. Gonzales, 506 F.3d 940 (9th Cir. 2007) (en banc). He
argues that Gonzales supports his position that “term of imprisonment” really
means “term of actual confinement.” As we stated in Gonzales, however, that case
and Echavarria-Escobar addressed “entirely different issue[s].” Id. at 944 n.3. In
Echavarria-Escobar, an illegal reentry case, we relied on our interpretation of the
INA’s definition of “term of imprisonment” to determine whether a conviction
resulting in a suspended sentence qualifies as an aggravated felony under U.S.S.G.
§ 2L1.2. Id. By contrast, in Gonzales, we considered whether a suspended
sentence could be counted as a “prior sentence” when calculating a defendant’s
criminal history score under U.S.S.G. § 4A1.2(c)(1)—an issue that had nothing to
do with the INA’s definition of “term of imprisonment.” Id. at 944–45, 944 n.3.
Accordingly, Gonzales neither overrules nor conflicts with our interpretation of
“term of imprisonment” under § 1101(a)(48)(B) in Echavarria-Escobar.
AFFIRMED.

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