* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 8, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-41083

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEJANDRO RETTA-HERNANDEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(B-03-246)

Before KING, Chief Judge, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM: *

Appellant Alejandro Retta-Hernandez (“Retta”) was convicted on a plea of guilty for illegal

reentry into the United States in vio lat ion of 18 U.S.C. § 1326. At sentencing, the district court

imposed an eight level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(C) (2002), on the basis that

Retta’s previous theft conviction constituted an aggravated felony, and ultimately sentenced Retta

to, inter alia, twenty-four months incarceration. On appeal, Rett a contends that the district court2

erred in determining that his prior theft conviction qualified as an ag gravated felony, and thus

improperly enhanced his sentence. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On Ma rch 2, 2003, United States Customs enforcement agents were patrolling downtown

Brownsville, Texas, when the agents recog nized Ret t a, in an adjacent vehicle at a stoplight, as an

alien who had recently been deported from the United States. The agents stopped Retta, and upon

questioning, he admitted being a citizen of Mexico who lacked proper documentation allowing him

to legally reside in the United States. Retta was taken into custody and following a records check,

agents determined that Retta also had a prior state conviction for theft from a person.

On May 15, 2003, Retta’s prior state t heft conviction, on which he originally received a

sentence of one year incarceration suspended for two years probation, was revoked and Retta was

re-sentenced to six months incarceration for the state theft conviction. On August 8, 2003, Retta was

convicted, following a guilty plea, of illegal reentry into the United States under 18 U.S.C. § 1326.

At the federal sentencing, the Pre-Sentence Report (“PSR”) determined that Retta’s base

offense level was eight, U.S.S.G. § 2L1.2(a). The PSR recommended an eight-level enhancement

on the ground that Retta’s prior state conviction was an aggravated felony. § 2L1.2(b)(1)(C). The

adjusted offense level of sixteen was reduced by three levels for Retta’s acceptance of responsibility,

§ 3E1.1 (a) & (b), leaving a total offense level of thirteen and a criminal history category of IV,

resulting in a guideline imprisonment range of twenty-four to thirty months.

Retta objected to the PSR’s eight-level enhancement for an aggravated felony on the grounds

that the prison sentence on his state theft conviction had ultimately been reduced to six months. The3

district court ultimately disagreed with Retta’s argument and sentenced him as follows: 24 months

imprisonment, three years supervised release, and a $100 special assessment.

DISCUSSION

We review a district court’s find ings o f fact for clear error and its application of the

Sentencing Guidelines de novo. U nited States v. Solis

, 169 F.3d 224, 226 (5th Cir. 1999). Retta was

convicted of unlawfully reentering the United States, subsequ ent t o deportation, in violation of 8

U.S.C. § 1326(a). The district court enhanced Retta’s sentence by eight levels on the ground that

Retta’s prior theft conviction was an aggravated felony. According to the Sentencing Guidelines, an

eight level enhancement is proper if the defendant was deported, for unlawfully entering the United

States, if the defendant was previously deported following a co nviction for an aggravated felony.

U.S.S.G. § 2L1.2(b)(1)(C).

The statutory definition of “aggravated felony” set forth in 8 U.S.C. § 1101 (a)(43), al so

applicable to the guideline enhancement as well, includes a “theft offense (including receipt of stolen

property) or burglary offense for which the term of imprisonment was at least one year .” 8 U.S.C.

§ 1101(a)(43)(G) (emphasis added). We have held that the phrase “term of imprisonment” refers to

“the period of incarceration of confinement ordered by a court of law regardless of any suspension

of the imposition or execution of that imprisonment or sentence in whol e or in part.” §

1101(a)(48)(B); see United States v. Yanez- Huerta , 207 F.3d 746 (5th Cir. 1996) (suspended

sentence counts for enhancement purposes). Under our precedent, however, the enhancement does

not apply “when a defendant is directly sentenced to probation, with no mention of suspension of a

term of imprisonment.” U nited States v. Banda-Zamora

, 178 F.3d 728, 7 30 (5th Cir. 1999).

Retta contends that because his ultimate sentence was to serve six months in prison, he was

not convicted of an aggravated felony, and thus should not receive the eight-level enhancement4

pursuant to U.S.S.G. § 2L1.2(b)(1)(C). Relying on our decisions in U nited States v. Comp ianTorres

, 320 F.3d 514 (5th Cir. 2003), and United States v. Landeros-Arreola

, 260 F.3d 407, 410 (5th

Cir. 2001), Retta contends that the district court erred because it should only have considered the six

month term of imprisonment he was ordered to serve following revocation. We cannot agree.

In Compian-Torres

, the defendant pleaded guilty to illegal reentry after having been deported

following a felony drug trafficking conviction. 320 F.3d at 514. On his prior drug trafficking felony,

Compian-Torres was sentenced for possession of a controlled substance to ten years probation, and

for delivery of a controlled substance to ten years imprisonment, probated for ten years. I d

. at 515.

His probation was later revoked, and he was sentenced to two years imprisonment for the delivery

offense. I d

. Compian-Torres challenged the 16 level increase in his base offense level prompted by

the district court’s finding that his prior felony conviction was a drug-trafficking offense “for which

the sentence imposed exceeded 13 months.” Id . at 514-15.

At the outset, we observe that Compian-Torres is significant ly different from the present case

because the sentencing provisions involved in the two cases employ different methods of measuring

the sentence imposed on a prior offense. Retta’s aggravated felony case is governed by 8 U.S.C. §

1101(a)(48)(B), which defines “term of imprisonment” to include any sentence wi thout regard to

whether the sentence was suspended or otherwise not immediately executed. Thus, under the general

rule governing the ag g ravated felony enhancement, Retta’s original one-year suspended sentence

would count as a year of imprisonment, making his prior offense an aggravated felony. S ee YanezHuerta

, 2 07 F.3d at 748-49. But i n C ompian-Torres

, the applicable Commentary specifically

excluded any porti on of a sentence that was suspended or probated. 320 F.3d at 515. The question

in Compian-Torres

, therefore, was whether the district court could consider a term of imprisonment5

that was later imposed a ft er the original term of probation — which, under the governing

Commentary, did not count as a sentence of imprisonment — had been revoked.

On appeal, we affirmed the district court’s judgment to consider, as part of the sentence on

the prior felony, a term of imprisonment imposed upon revocation of probation. I d

. at 515. We held

t hat because such a term of imprisonment is indeed part of the punishment for the pri or felony

conviction, the district court properly counted such prison term in deter mining the length of the

“sentence imposed” on the prior convicti on. I d

. In reaching that conclusion, we reasoned that

“[u]nder both federal and state law a sentence imposed upon revocation of probation is treated as a

sentence on the original underlying offense

. S uch a sentence is not considered a sanction for the new

conduct which constituted a probation violation.” I d

. at 516 (emphasis added); see also United States

v. Hidalgo-Macias

, 300 F.3d 281, 285 (2nd Cir. 2002) (holding that prison term following revocation

of probation is a modification and part of the actual sentence imposed for the original offense); Ex

parte Weaver

, 880 S.W.2d 855, 857 (Tex. App. — Fort Worth 1994, pet. ref’d) (“In a probati on

revocation hearing, the State is seeking to impose the punishment originally assessed for the offense

for which the probated sentence was given, not the offense which violated the probation condition.”).

The lesson in Compian-Torres therefore is tha t following a revocation of probation,

sentencing courts properly look to the actual sentence impose d fo r t he original offense, and the

sentence following revocati o n is part and parcel of this actual sentence. Read in this light, the

reasoning of Compian-Torres suggests that the government is correct in contending that Retta urges

the court to do the “exact opposite” of what Compian-Torres mandates; rather than considering the

sentence imposed on revocation as part of the entire “sentence imposed,” Retta asks the court to6

ignore the original sentence imposed and look only to the actual term of imprisonment ordered on

revocation.

Retta’s misunderstanding of Compian-Torres is due to what occurred after this court looked

to the original sentence. In looking to the original sentence, we applied a portion of the Guidelines

Commentary

— a porti on not applicable to Retta’s case

— instructing that, “[i]f all or any part of a

sentence of imprisonment was probated, suspended, deferred, or stayed, ‘sentence imposed’ refers

only to the portion that was not probated, suspended, deferred, or stay ed.” I d

. at 515 (quoting

U.S.S.G. § 2L1.2, comment (n.1)(A)(iv)). Applying this language to the original sentence, we were

required to disregard the probated sentence (the ten-year terms). I d

. at 516. Because the sentence

impo sed upon revocation is treated as a sentence on the original underlying offense, we did not

disregard the two years imposed upon revocation of probation. I d

. To the contrary, we steadfastly

focused on the original s ent ence fo r purposes of determining whether there has been a qualifying

drug-trafficking conviction, and merely applied the sentence following revocation as an extension of

the original sentence. Again, the statute governing Retta’s case, 8 U.S.C. § 1101(a)(48)(B) does not

require us to ignore the original suspended sentence.

Similarly, we find Retta’s reliance on Landeros-Arreola

— as standing for the proposition that

if the court reduces a prison sentence to less than one year, the prior conviction is not an aggravated

felony — also infirm. In Landeros-Arreola , the defendant pleaded guilty to re-entering the United

States illegally, in violation of 8 U.S.C. § 1326. 260 F.3d at 409. At sentencing, the PSR treated the

defendant ’ s menacing conviction as an aggravated felony, increasing the defendant’s base offense

level by sixteen and adding thr ee po int s t o his criminal history. I d

. Landeros objected to the

sentencing report’s enhancement on the ground that his prior conviction was not an aggravated felony

because his sentence, which was originally four years imprisonment, was subsequently reduced to less1 Pursuant to Section 1101(a)(43)(F), the term “aggravated felony” means a crime of violence for

which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F).

7 than a year. 1 I d

. Landeros pointed out that after he completed a st at e “military boot camp” for

inmates, the state court issued a “Reconsider at io n o f Sentence” order reducing his term of

imprisonment to less than one year. I d

. The district court determined that the state court’s order was

similar to an early release, and did not constitute a change in sentence. I d

. at 410. Thus, the district

court found that Landeros’s prior Colorado felony conviction for menacing constituted an aggravated

felony, which subjected him to U.S.S.G. § 2L1.2's penalty enhancement. Id . at 409.

On appeal, we reversed and held that Landeros’s menacing conviction does not meet t he

aggravated felony definition. I d

. at 414. We rejected the government’s argument that the state

court’s reduction for completion of boot camp was in effect a suspension of the execution of sentence

and instead found that “[b]ecause Landeros’s sentence was reduced from a potentially qualifying term

of imprisonment to probation

. . . his prior conviction does no t meet t he federal definition of an

aggravated felony.” I d

. at 413. In so concluding, we reasoned that “[w]hile our prior cases indicate

that defendants w ho receive suspended sentences . . . remain subject to the aggravated felony

definition, our prior cases do not intimate that a modification of a defendant’s term of imprisonment

to probation via Rule 35(b) co nstitutes a suspension of sentence.” I d

. Interpreted in this light,

Landero-Arreola stands for the proposition that while a sentence re duced to probation d oes not

co nstitute a term of imprisonment for purposes of determining whether a prior conviction is an

aggravated felony, a sentence modified to a suspension remains subject to the aggravated felony

definition.

Accordingly, we find that Retta’s misint e rpret ation of the holding in L andero-Arreola

, as

standin g fo r t he notion that a reduction in a prison sentence to less than a year, means his earlier8

conviction is “erased,” stems from reading our opinion out of context. In reaching our conclusion

in Landero-Arreola we compared Landeros’s case with United States v. Vasquez-Balandran

, 76 F.3d

648, 650-51 (5th Cir. 1996), where we held an abeyance in lieu of probation under Texas law was

effectively a suspended sentence that should be included in the term of imprisonment calculation. I d

.

at 414. We found that Vasquez-Balandran’s sentence differed from Landeros’s sentence, because

the former’s term o f imprisonment — similar to Retta’s sentence — was imposed and then

suspended, “thus subjecting Vasquez-Balandran to service of that sentence if he violated the terms

imposed by the court.” Id . at 414.

Conversely, in Landeros’s case, and unlike Retta’s present case, the state sentencing court

imposed a term of imprisonment but, thereafter, intervened and reduced the sentence imposed from

one of imprisonment to one of probation. As a consequence, we stated, “nothing remained of the

original term of imprison m ent for the court to suspend .” I d

. (emphasis added). In other words,

unlike Retta’s argument, the original term of imprisonment does not disappear upon reduction, rather

in reducing a sentence to probation the prior term cannot be suspended. Therefore, we find Retta’s

case similar to Vasquez-Balandran where the term of imprisonment was imposed and then suspended

and thus, Retta’s origina l suspended sentence should be included in the term of imprisonment

calculation.

Finally, we note that if we adopted Retta’s argument , Retta would be awarded a windfall

solely because he happened to violate his probation resulting in his serving six months of his one year

sentence. On the other hand, a similarly situated defendant who does not violate his probation would

end up with four more points added to his base level because he did not violate his probation. We

find such a result untenable.9

Accordingly, we conclude that t he dist rict court did not err in applying the eight level

enhancement. We therefore affirm Retta’s sentence.

AFFIRMED.