PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 07-4105

SANTOS MATAMOROS-MODESTA, a/k/a

Jose Perez Balrino,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 07-4118

SANTOS MATAMOROS-MODESTA,

Defendant-Appellant. 

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, District Judge.

(5:05-cr-00226; 3:03-cr-00144)

Argued: February 1, 2008

Decided: April 10, 2008

Before MOTZ, KING, and GREGORY, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the

opinion, in which Judge Motz and Judge Gregory joined. 
COUNSEL

ARGUED: Matthew R. Segal, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for

Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES

ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:

Raquel K. Wilson, FEDERAL DEFENDERS OF WESTERN

NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte,

North Carolina, for Appellee.

OPINION

KING, Circuit Judge: 

Santos Matamoros-Modesta appeals in No. 07-4105 from his

thirty-seven-month sentence for illegal reentry into the United States

after removal, in contravention of the Immigration and Nationality

Act (the "INA"), specifically 8 U.S.C. § 1326. Matamoros-Modesta

maintains that the district court erred — in the wake of the Supreme

Court’s decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006) — by

enhancing his sentence for having previously been removed subsequent to an "aggravated felony" conviction. The Government has conceded that Matamoros-Modesta is entitled to relief on this issue.

Because the parties’ shared position is a valid one, we vacate the illegal reentry sentence and remand for resentencing.1

1Matamoros-Modesta also noted appeals in No. 07-4105 from his conviction for illegal reentry, and in No. 07-4118 from a revocation of

supervised release and the resulting 366-day sentence. We do not consider these matters herein, however, because Matamoros-Modesta abandoned his challenge to the illegal reentry conviction by renouncing it at

oral argument. See Synergistic Int’l, LLC v. Korman, 470 F.3d 162, 176

n.15 (4th Cir. 2006). And, he abandoned any appellate contentions

related to the supervised release revocation and resulting sentence by

failing to address them in his opening brief. See Edwards v. City of

Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (citing Fed. R. App.

P. 28(a)(9)(A)). 

2 UNITED STATES v. MATAMOROS-MODESTA
I.

On July 27, 2005, a grand jury in the Western District of North

Carolina charged Matamoros-Modesta in a single-count indictment

with the INA offense of illegal reentry. The indictment specified that

he was charged under 8 U.S.C. § 1326(a) and (b)(2).2 On March 7,

2006, Matamoros-Modesta pleaded guilty to the offense as charged,

without a written plea agreement. Thereafter, a presentence investigation report (the "PSR") was prepared for him. Applying the 2005 edition of the Sentencing Guidelines, the PSR assigned MatamorosModesta a base offense level of 8. See USSG § 2L1.2(a). The PSR

then added an eight-level enhancement for having previously been

removed following "a conviction for an aggravated felony." Id.

§ 2L1.2(b)(1)(C) (the "aggravated felony enhancement"). The PSR

reflected two possible bases for the aggravated felony enhancement:

(1) a 1998 conviction in Texas for possession of cocaine, and (2) a

2Subsection (a) of § 1326 provides, "[s]ubject to subsection (b)," that

any alien who— 

(1) has been denied admission, excluded, deported, or

removed or has departed the United States while an order of

exclusion, deportation, or removal is outstanding, and thereafter 

(2) enters, attempts to enter, or is at any time found in, the

United States, unless (A) prior to his reembarkation at a

place outside the United States or his application for admission from foreign contiguous territory, the Attorney General

has expressly consented to such alien’s reapplying for

admission; or (B) with respect to an alien previously denied

admission and removed, unless such alien shall establish that

he was not required to obtain such advance consent under

this chapter or any prior Act, 

shall be fined under Title 18, or imprisoned not more than 2

years, or both. 

Subsection (b), in turn, outlines enhanced criminal penalties for certain

offenders. Under subsection (b)(2), "in the case of any alien . . . whose

removal was subsequent to a conviction for commission of an aggravated

felony, such alien shall be fined under [Title 18], imprisoned not more

than 20 years, or both." 

UNITED STATES v. MATAMOROS-MODESTA 3
prior federal conviction in 2004 for illegal reentry.3

 Finally, the PSR

awarded a three-level adjustment for acceptance of responsibility, id.

§ 3E1.1, resulting in a total offense level of 13. With a criminal history category of V (based on a total of twelve criminal history points),

the resulting advisory Guidelines range was thirty to thirty-seven

months of imprisonment. The PSR identified the maximum statutory

prison term as twenty years, citing subsection (b)(2) of 8 U.S.C.

§ 1326. 

On December 18, 2006, the district court conducted a sentencing

hearing for Matamoros-Modesta. At the start of the hearing, the court

reaffirmed its acceptance of Matamoros-Modesta’s guilty plea. Next,

the court adopted the PSR, without objection from the parties (or any

mention of the Supreme Court’s decision in Lopez v. Gonzales, which

had been issued two weeks earlier, on December 5, 2006). After considering the Sentencing Guidelines, as well as the factors set forth in

18 U.S.C. § 3553(a), the district court imposed a sentence of thirtyseven months, at the high end of the Guidelines range. The court’s

Judgment reflects that Matamoros-Modesta was deemed guilty of and

sentenced for illegal reentry, in contravention of 8 U.S.C. § 1326(a)

and (b)(2). Matamoros-Modesta timely noted this appeal, which he

has since limited to a Lopez-based challenge to his sentence.4

3The PSR also revealed that Matamoros-Modesta, while a juvenile,

had been removed from the United States on November 19, 1997, after

entering the country illegally. Matamoros-Modesta illegally reentered the

United States and, after his 1998 conviction in Texas for cocaine possession, was removed on June 11, 1999. Following another illegal reentry

into the United States, he was convicted of a number of offenses in South

Carolina and North Carolina between 2000 and 2003. He also received

his prior federal conviction in 2004 for illegal reentry. On March 17,

2005, Matamoros-Modesta was again removed. He illegally returned to

the United States sometime between his last removal and his July 14,

2005 arrest on additional North Carolina charges of which he was subsequently convicted. 

4Notably, although the indictment charged the INA offense of illegal

reentry pursuant to 8 U.S.C. § 1326(a) and (b)(2), and the district court’s

Judgment reflects conviction under those same provisions, the Supreme

Court has recognized that the substantive crime of illegal reentry is

defined in subsection (a), and not subsection (b)(2). See AlmendarezTorres v. United States, 523 U.S. 224, 231-32 (1998). As the Court

explained, subsection (b)(2) "is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define

a separate crime." Id. at 226. 

4 UNITED STATES v. MATAMOROS-MODESTA
II.

As a result of the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), "the Guidelines are now advisory, and

appellate review of sentencing decisions is limited to determining

whether they are ‘reasonable.’" Gall v. United States, 128 S. Ct. 586,

594 (2007). And, as the Court has instructed, "courts of appeals must

review all sentences" — including those (like Matamoros-Modesta’s)

imposed within the advisory Sentencing Guidelines range — "under

a deferential abuse-of-discretion standard." Id. at 591. At the first step

of this review, as relevant here, we must "ensure that the district court

committed no significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range." Id. at 597.

Matamoros-Modesta contends and the Government concedes that, in

light of Lopez v. Gonzales, 127 S. Ct. 625 (2006), the district court

committed significant procedural error in sentencing MatamorosModesta on his INA illegal reentry offense, by improperly applying

the aggravated felony enhancement under section 2L1.2(b)(1)(C) of

the Guidelines. In reviewing this issue, we first examine the Lopez

decision. We then explain why Lopez indeed entitles MatamorosModesta to relief.5

A.

In Lopez v. Gonzales, the Supreme Court assessed "whether conduct made a felony under state law but a misdemeanor under the Con5The parties have agreed that the district court committed plain error

in sentencing Matamoros-Modesta. See Fed. R. Crim. P. 52(b) (providing

that "[a] plain error that affects substantial rights may be considered even

though it was not brought to the court’s attention"); United States v.

Olano, 507 U.S. 725, 732 (1993) (explaining that party seeking to overturn ruling on plain error review bears burden of demonstrating (1) error

occurred, (2) it was plain, and (3) it affected his substantial rights, and

that appellate court yet wields discretion to correct plain error). Accordingly, we do not endeavor to assess herein the proper post-Booker role

of plain error review in sentencing appeals. Cf. United States v. Vonner,

No. 05-5295, ___ F.3d ___ (6th Cir. Feb. 7, 2008) (en banc) (applying

plain error test, over vigorous dissents, to contention that sentencing

court committed procedural error by failing to adequately explain its

rejection of defendant’s arguments for leniency). 

UNITED STATES v. MATAMOROS-MODESTA 5
trolled Substances Act is a ‘felony punishable under the Controlled

Substances Act’" — and, thus, whether such a state offense is an "aggravated felony" for purposes of the INA. See 127 S. Ct. at 627-28.

Significantly, the Court concluded that "it is not." Id. at 627.6

As the Court recognized, the INA makes an alien "guilty of an

aggravated felony if he has been convicted of ‘illicit trafficking in a

controlled substance . . . including,’ but not limited to, ‘a drug trafficking crime (as defined in section 924(c) of title 18).’" Lopez, 127

S. Ct. at 629 (quoting 8 U.S.C. § 1101(a)(43)(B)) (alteration in original). For its part, 18 U.S.C. § 924(c) "defines ‘drug trafficking

crime,’" in relevant part, "as ‘any felony punishable under the Controlled Substances Act.’" Id. (quoting 18 U.S.C. § 924(c)(2)). After a

sweeping examination of this language, the 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 633 — rejecting the proposition that the state

offense, if categorized by the state as a felony, need only be "punishable" under the Controlled Substances Act, as a felony or misdemeanor, id. at 631.7

The petitioner in Lopez was contesting the Government’s determination that he was deportable, pursuant to the INA (specifically, 8

U.S.C. § 1227(a)(2)(A)(iii)), as an "alien who [was] convicted of an

aggravated felony at any time after admission." See 127 S. Ct. at 628

(explaining that aggravated felony determination disqualified Lopez,

under 8 U.S.C. § 1229b(a)(3), from discretionary cancellation of

removal). The aggravated felony determination was premised on

Lopez’s state conviction in South Dakota for aiding and abetting

6The INA defines "aggravated felony" in 8 U.S.C. § 1101(a)(43),

which includes subparagraphs (A) through (U). The Lopez Court focused

on subparagraph (B), which renders "illicit trafficking in a controlled

substance" an aggravated felony. 

7

In so holding, the Supreme Court overruled our contrary decision in

United States v. Wilson, 316 F.3d 506, 511-14 (4th Cir. 2003), to the

extent we concluded therein that a state felony drug possession offense,

punishable as only a federal misdemeanor, constitutes a "felony punishable under the Controlled Substances Act" and, thus, an aggravated felony under the INA. See Lopez, 127 S. Ct. at 629 n.3. 

6 UNITED STATES v. MATAMOROS-MODESTA
another person’s possession of cocaine, see id., "which state law

treated as the equivalent of possessing the drug," id. at 629. The

Supreme Court observed that, although Lopez’s offense was a felony

under South Dakota law, "[m]ere possession is not . . . a felony under

the federal" Controlled Substances Act. Id. (citing 21 U.S.C. § 844(a)).8

Accordingly, based on its holding "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," the

Court reversed the aggravated felony determination. Id. at 633.9

B.

Matamoros-Modesta challenges the district court’s imposition of

the aggravated felony enhancement under section 2L1.2(b)(1)(C) of

the Sentencing Guidelines, with respect to his sentence for illegal

reentry in contravention of the INA, 8 U.S.C. § 1326. By contrast, the

petitioner in Lopez contested an aggravated felony determination that

disqualified him under the INA, 8 U.S.C. § 1229b(a)(3), from discretionary cancellation of removal. The Lopez holding is clearly pertinent, however, to Matamoros-Modesta’s sentencing contention. That

is, both 8 U.S.C. §§ 1326(b)(2) and 1229b(a)(3) rely on the INA definition of aggravated felony found in 8 U.S.C. § 1101(a)(43), subpara8The Lopez Court acknowledged that the general proposition that the

Controlled Substances Act punishes drug possession offenses as misdemeanors is subject to a few exceptions for, e.g., repeat offenders, persons

who possess more than five grams of cocaine base, and persons who possess flunitrazepam. See 127 S. Ct. at 630 n.4 (citing 21 U.S.C. § 844(a)).

Moreover, as the Court observed, "possessing more than what one person

would have for himself will support conviction for the federal felony of

possession with intent to distribute." Id. at 629 (citing 21 U.S.C. § 841).

9The Lopez Court also allowed that a state felony would satisfy the

INA definition of aggravated felony found in 8 U.S.C. § 1101(a)(43)(B)

if it "actually fell within the general term ‘illicit trafficking,’ . . . regardless of the existence of a federal felony counterpart." 127 S. Ct. at 631-

32; see also id. at 630 (observing that "ordinarily ‘trafficking’ means

some sort of commercial dealing"). The Court concluded that Lopez’s

offense conduct did not amount to "illicit trafficking," in that

"[c]ommerce . . . was no part of Lopez’s South Dakota offense of helping

someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime." Id. at 630. 

UNITED STATES v. MATAMOROS-MODESTA 7
graph (B) of which was interpreted by the Lopez Court. Moreover, as

the Lopez Court acknowledged, the Sentencing Guidelines have

adopted that same INA definition of aggravated felony for purposes

of imposing the aggravated felony enhancement. See 127 S. Ct. at 628

(citing USSG § 2L1.2 cmt. n.3 (2005)). Indeed, several of our sister

courts of appeals have applied Lopez in aggravated felony enhancement appeals. See United States v. Figueroa-Ocampo, 494 F.3d 1211,

1216 (9th Cir. 2007) (observing that "it is beyond dispute that Lopez

applies in both criminal sentencing and immigration matters"); United

States v. Estrada-Mendoza, 475 F.3d 258, 261 (5th Cir. 2007) (concluding that "Lopez ineluctably applies with equal force to immigration and criminal cases"); see also United States v. Pacheco-Diaz, 506

F.3d 545, 548 (7th Cir. 2007); United States v. Martinez-Macias, 472

F.3d 1216, 1218 (10th Cir. 2007). 

Under Lopez, the district court’s determination that MatamorosModesta had been removed subsequent to an aggravated felony conviction constitutes error. As noted above, Matamoros-Modesta’s PSR

reflected two possible bases for the aggravated felony enhancement,

i.e., his 1998 conviction in Texas for possession of cocaine, and his

prior federal conviction in 2004 for illegal reentry. The Texas drug

possession offense, though deemed a felony under state law, was not

punishable as a felony under the federal Controlled Substances Act

and, thus, cannot satisfy the INA definition of an aggravated felony

found in 8 U.S.C. § 1101(a)(43)(B) and interpreted in Lopez. See

Lopez, 127 S. Ct. at 630 n.4 (recognizing that Texas is among

"[s]everal States [that] punish possession as a felony"); see also

Estrada-Mendoza, 475 F.3d at 259-61 (invoking Lopez to vacate illegal reentry sentence where aggravated felony enhancement imposed

on basis of prior Texas felony conviction for drug possession). Moreover — because the Texas drug possession offense does not constitute

an aggravated felony, and because Matamoros-Modesta was not otherwise convicted of any INA-defined aggravated felony before his

prior illegal reentry offense — the prior illegal reentry offense also

does not qualify as an aggravated felony under the INA definition

found in § 1108(a)(43)(O) (deeming prior illegal reentry offense to be

aggravated felony if committed after removal on basis of conviction

for another § 1108(a)(43) aggravated felony offense). Accordingly,

the district court committed significant procedural error by imposing

8 UNITED STATES v. MATAMOROS-MODESTA
the aggravated felony enhancement on Matamoros-Modesta, and he

is entitled to resentencing.10

III.

Pursuant to the foregoing, we vacate Matamoros-Modesta’s illegal

reentry sentence, and remand for resentencing.

VACATED AND REMANDED

10Matamoros-Modesta has acknowledged that he is subject to a fourlevel enhancement under section 2L1.2(b)(1)(D) of the Sentencing

Guidelines, for having previously been removed following "a conviction

for any other felony." Assuming all other Guidelines calculations stand

(except a necessary change from a three- to a two-level adjustment for

acceptance of responsibility, see USSG § 3E1.1), Matamoros-Modesta

would have an offense level of 10, a criminal history category of V, and

a resulting sentencing range of twenty-one to twenty-seven months. He

also suggests that he should be resentenced under subsection (b)(1) of 8

U.S.C. § 1326 (establishing maximum ten-year sentence for illegal reentry in case of alien whose removal was subsequent to conviction for felony other than aggravated felony), rather than subsection (b)(2)

(providing maximum twenty-year sentence where removal followed

aggravated felony conviction). We leave these issues for the district court

on remand. 

UNITED STATES v. MATAMOROS-MODESTA 9