F I LED

United States Court of Appeals

Tenth Circuit

January 3, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 05-3243

JUAN MARTINEZ-MACIAS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 04-CR-20171-CM)

Melissa Harrison, Assistant Federal Public Defender for the District of Kansas,

(David J. Phillips, Federal Public Defender, with her on the briefs) Kansas City,

Kansas, for Defendant-Appellant.

Michael G. Christensen, Assistant United States Attorney, (Eric F. Melgren,

United States Attorney, with him on the brief) Kansas City, Kansas, for PlaintiffAppellee.

Before MURPHY, McKAY, and HOLLOWAY, Circuit Judges.

McKAY, Circuit Judge.

Defendant Juan Martinez-Macias initially was deported from the United

States to Mexico on June 25, 1999, following his conviction, pursuant to a plea
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bargain, in Wyandotte County District Court for possession of cocaine, a felony

under Kansas state law. He illegally reentered the United States on or about

February 15, 2000, and was arrested nearly five years later by Kansas City police

responding to a domestic battery claim. As a result of this arrest, defendant was

charged and pleaded guilty to a one-count indictment for illegally reentering the

United States after deportation for an aggravated felony, in violation of 8 U.S.C.

§§ 1326(a) and (b)(2). The district court sentenced him to twenty-one months’

imprisonment and two years of supervised release. This sentence was based in

part on a pre-sentence report recommendation that the court apply an eight-level

“aggravated felony” enhancement under United States Sentencing Guideline §

2L1.2(b)(1)(C). 

Defendant argues on appeal that the advisory nature of the Sentencing

Guidelines following United States v. Booker, 543 U.S. 220 (2005), and the

recommended method of statutory interpretation implied in Leocal v. Ashcroft,

543 U.S. 1 (2004), warrant reversal of this court’s interpretation of §

2L1.2(b)(1)(C) in United States v. Castro-Rocha, 323 F.3d 846 (10th Cir. 2003). 

Accordingly, Defendant contends his eight-level aggravated felony enhancement

is unjustified and resulted in an unreasonable sentence. Defendant also argues

that sentencing disparities among similarly situated defendants created by “fast

track” sentencing programs renders his sentence unreasonable. 

We review a district court’s interpretation of the Sentencing Guidelines de
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novo. United States v. Holbert, 285 F.3d 1257, 1259 (10th Cir. 2002). The crime

of illegal reentry after deportation for an aggravated felony is codified at 18

U.S.C. § 1326(b)(2), and Sentencing Guideline § 2L1.2(b)(1)(C) suggests adding

an eight-level enhancement where deportation occurs after a conviction for an

aggravated felony. However, the definition of “aggravated felony” provided in

Application Note 3 to § 2L1.2 begins an almost comical series of statutory crossreferences: “For purposes of subsection (b)(1)(C), ‘aggravated felony’ has the

meaning given that term in section 101(a)(43) of the Immigration and Nationality

Act [(“INA”)] (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction

for the aggravated felony.” Under 8 U.S.C. § 1101, which provides the

definitions applicable to the INA, “aggravated felony” is defined in pertinent part

as “illicit trafficking in a controlled substance . . . including a drug trafficking

crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). 

Turning to 18 U.S.C. § 924(c), we find that “the term ‘drug trafficking crime’

means any felony punishable under the Controlled Substances Act [(“CSA”)] (21

U.S.C. 801 et seq.).” Interpreting this “rather confusing maze of statutory crossreferences” in order to “decipher[] what the term ‘aggravated felony’” means in

the Sentencing Guideline context, United States v. Palacios-Suarez, 418 F.3d 692,

695 (6th Cir. 2005) (internal quotation omitted), would no doubt prove a daunting

task given the circuit split on this issue, see Lopez v. Gonzales, --- U.S. ---, No.

05-547, 2006 WL 3487031, at *3 n.3 (Dec. 5, 2006) (collecting circuit cases),
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even in light of this court’s previous pronouncements on the meaning of the term. 

Fortunately, our route has been set for us by the Supreme Court in its

recent decision on this precise issue. See Gonzalez-Gonzalez v. Weber, --- F.3d --

-, 2006 WL 3791275, at *3 (10th Cir. Dec. 27, 2006) (applying Lopez). In Lopez

v. Gonzales, after noting that mere drug possession is not considered a felony

under the CSA, id. at *3 (citing 21 U.S.C. § 844(a)), and conducting a careful

analysis of the statutes at issue, the Supreme Court held that “a state offense

constitutes a ‘felony punishable under the Controlled Substances Act’ only if it

proscribes conduct punishable as a felony under that federal law,” id. at *7. In so

holding, the Supreme Court expressly abrogated this court’s decision in United

States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996) and effectively abrogated

our decision in Castro-Rocha. See Gonzalez-Gonzalez, 2006 WL 3791275, at *4

(recognizing abrogation of Cabrera-Sosa and the “cases that had followed it”). 

Consequently, we must remand Defendant’s case to the district court for

resentencing consistent with the Supreme Court’s opinion in Lopez. 

Our decision renders moot Defendant’s contention that the eight-level

enhancement is per se unreasonable. It does not, however, avoid Defendant’s

claim that a sentencing disparity was caused by the unavailability of a “fast track”

sentencing program in the District of Kansas. As this argument will survive

resentencing, we address it here.

We recognize that certain judicial districts employ fast-track programs in
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order to expedite immigration offense cases, and that “[t]hese programs allow

defendants to obtain a downward departure in their offense level under the

[Sentencing Guidelines] in exchange for pleading guilty and waiving their rights

to file certain motions and to appeal.” United States v. Martinez-Trujillo, 468

F.3d 1266, 1267 (10th Cir. 2006). These programs are authorized by a provision

in the Prosecutorial Remedies and Other Tools to End the Exploitation of

Children Today Act of 2003 (the “PROTECT Act”). See Pub. L. No. 108-21, 117

Stat. 650 (codified in scattered sections of 18, 28, and 42 U.S.C.). In United

States v. Martinez-Trujillo, we held that although the unavailability of such

programs to some defendants creates disparate sentences, a disparity was not

“‘unwarranted’ within the meaning of § 3553(a)(6) when the disparity was

specifically authorized by Congress in the PROTECT Act.” 468 F.3d at 1268. 

This decision is consistent with the position taken by several of our sister circuits,

see id. (citing recent decisions of the Second, Fourth, Fifth, Ninth and Eleventh

Circuits), and we see no reason to depart from Congress’s implicit acceptance of

this disparate result. 

Accordingly, the matter is REMANDED to the district court with

instructions to VACATE defendant’s sentence and resentence him consistent with

Lopez v. Gonzales, --- U.S. ---, No. 05-547, 2006 WL 3487031 (Dec. 5, 2006),

and this opinion.