United States v. Gamez-Ale

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 28, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50892
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR DANIEL GAMEZ-ALE, also known as Hector Rodriguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas, Del Rio
USDC No. DR-03-CR-171-1-AML
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Before SMITH, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Hector Daniel Gamez-Ale appeals the
district court’s decision to apply a twelve-level increase to his
offense level at sentencing. Because we conclude that the district
court properly ordered the increase, we affirm the sentence
imposed.
In August 2001, Gamez-Ale pleaded guilty and was convicted in
Minnesota state court of unlawful sale of a controlled substance to
a person under eighteen years of age, see Minn. Stat. § 152.023,

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subd. 1(3) (2003). This crime carried a maximum punishment of
twenty years’ imprisonment. See id. § 152.023, subd. 3(a). The
court placed Gamez-Ale on probation for a period of zero to twenty
years, stayed imposition of the sentence, and ordered Gamez-Ale to
serve sixty days in jail as a condition of probation.
In May 2002, federal immigration authorities deported Gamez-
Ale to Mexico. A few weeks later, the Minnesota sentencing court
discharged Gamez-Ale from probation. Under Minnesota law, a
conviction for a felony “is deemed to be for a misdeanor” when
imposition of the prison sentence is stayed, the defendant is
placed on probation, and the defendant is discharged from probation
without a prison sentence. Minn. Stat. § 609.13, subd. 1(2)
(2003). The Minnesota sentencing court accordingly deemed Gamez-
Ale’s felony conviction a misdemeanor.
In February 2003, border patrol agents apprehended Gamez-Ale
when he attempted to reenter the United States. Gamez-Ale pleaded
guilty to illegal reentry, see 8 U.S.C.A. § 1326(a) (West 1999).
At sentencing, Gamez-Ale challenged the application of section
2L1.2(b)(1)(B) of the Sentencing Guidelines, which requires a
twelve-level increase for “a conviction for a felony drug
trafficking offense for which the sentence imposed was 13 months or
less,” U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(B) (2002).
Gamez-Ale argued that his prior drug trafficking conviction was not
a felony because the Minnesota sentencing court later deemed it a

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misdemeanor. The district court rejected this argument and applied
the twelve-level increase.
Having reviewed de novo the district court’s application of
the sentencing guidelines, see United States v. Landeros-Arreola,
260 F.3d 407, 410 (5th Cir. 2001), we conclude that the district
court was correct.
A state’s classification of a state sentence does not control
whether the guidelines apply to that sentence. Id. Rather,
whether the guidelines apply to a particular sentence is a question
of federal law. Id. Under federal law, traditional rules of
statutory interpretation guide our understanding of the guidelines.
United States v. Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003).
Interpretation of a guideline therefore starts with “a plain-
meaning approach” to the text. Id. The commentary is
authoritative. Id.
A plain-meaning approach to section 2L1.2(b)(2)(B) and the
attendant commentary supports the district court’s determination.
A “felony” is “any federal, state, or local offense punishable by
imprisonment for a term exceeding one year.” § 2L1.2, cmt.
n.1(B)(iv) (emphasis added). The word “punishable” indicates that
the definition of felony does not turn on the sentence a defendant
actually received, but the maximum sentence that could result from
a conviction for that offense. See United States v. Rivera-Perez,
322 F.3d 350, 352 (5th Cir. 2003); cf. Dickerson v. New Banner

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Inst., Inc., 460 U.S. 103, 113 (1983) (“It was plainly irrelevant
to Congress whether the individual in question actually receives a
prison term; the statute imposes disabilities on one convicted of
‘a crime punishable by imprisonment for a term exceeding one
year.’”) (quoting 18 U.S.C. § 922(g)(1) (1976 & Supp. V 1982))
(emphasis in Dickerson). The offense for which Gamez-Ale was
convicted bears a maximum sentence of twenty years’ imprisonment.
Minn. Stat. § 152.023, subd. 3(a). Therefore, Gamez-Ale was
convicted of an offense punishable by imprisonment for a term
exceeding one year, i.e., a felony.
Gamez-Ale relies on United States v. Landeros-Arreola, 260
F.3d 407 (5th Cir. 2001), and United States v. Compian-Torres, 320
F.3d 514 (5th Cir. 2003), for the proposition that if a court
reduces a sentence, the reduced sentence determines the punishment
for a subsequent offense. Even assuming that Gamez-Ale has
properly characterized his sentence as “reduced,” neither case
supports Gamez-Ale’s contention that his conviction is not a felony
for purposes of federal sentencing law. Landeros-Arreola involved
the meaning of “aggravated felony,” which was defined as “a crime
of violence for which the term of imprisonment [is] at least one
year,” 8 U.S.C.A. § 1101(a)(43)(F) (West 1999). See 260 F.3d at
410. The phrase “term of imprisonment,” in turn, referred to “the
period of incarceration or confinement ordered by a court of law.”
8 U.S.C.A. § 1101(a)(48)(B). Therefore, the definition of

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“aggravated felony” hinged on the punishment imposed in a
particular case. Compian-Torres involved the application of the
term “sentence imposed,” which likewise depended on the punishment
imposed in a particular case. 320 F.3d at 515. In contrast, the
definition of “felony” under section 2L1.2 hinges on the punishment
a court could have imposed. See § 2L1.2, cmt. n.1(B)(iv). When,
as in this case, the sentencing court must look to how an offense
is punishable, how the offense actually was punished is irrelevant.
Thus, the district court correctly held that Gamez-Ale’s prior
conviction for drug trafficking, though deemed a misdemeanor by
operation of section 609.13 of the Minnesota Statutes, is a felony
for purposes of section 2L1.2(B)(1)(b) of the U.S. Sentencing
Guidelines.
AFFIRMED.

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