United States Court of Appeals

Fifth Circuit

FILED

February 12, 2007

Charles R. Fulbruge III

Clerk

In The United States Court Of Appeals

For The Fifth Circuit

No. 05-40631

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FELIPE DE JESUS YERENA-MAGANA,

Defendant-Appellant.

–––––––––––––––––––––

Appeal from the United States District Court

for the Southern District of Texas

No. 7:04-CR-00678

–––––––––––––––––––––

Before SMITH, GARZA, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Felipe De Jesus Yerena-Magana (Yerena-Magana) pleaded guilty to possessing

marijuana with the intent to distribute, in violation of 21 U.S.C. § 841, and the district court

sentenced him to 70 monthsin prison. Yerena-Magana challenges his sentence, arguing that

the district court improperly calculated his criminal history score. We affirm.

I

On May 24, 2004, Yerena-Magana, a citizen of Mexico, unlawfully entered the

United States. A confidential source advised government agents that, on June 2, 2004,

someone had purchased watermelons as “cover” for a shipment of marijuana from McAllen,

Texas to Allentown, Pennsylvania, and that the shipment did in fact occur on June 5. The

same source later informed government agents that a similar shipment would take place on
1

21 U.S.C. § 846; see also id. § 841(a)(1), (b)(1).

2

Id. § 841(a)(1), (b)(1); see also 18 U.S.C. § 2 (liability as a principal).

3

See UNITED STATES SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 4A1.1(b) (2004)

(instructing the district court to “[a]dd 2 points for each prior sentence of imprisonment of at least

sixty days. . . .”); id. § 4A1.2, cmt. n.1 (explaining that a “priorsentence” does not include a sentence

2

June 24, 2004. On that date, Drug Enforcement Administration agents conducted

surveillance and found Yerena-Magana on a loading dock at a produce company inEdinburg,

Texas in possession of more than 900 kilograms of marijuana, which he had concealed in

watermelon containers. Witnesses later informed the government that about three weeks

earlier, in the first part of June, Yerena-Magana had purchased a large quantity of

watermelons that were to be thrown away and two days later, loaded them onto a tractortrailer and hauled them away.

Yerena-Magana was not immediately charged with drug offenses. However, on June

24, 2004, the date Yerena-Magana was discovered with the marijuana, he was arrested and

charged with unlawfully entering the United States, in violation of 8 U.S.C. § 1325. He

pleaded guilty to unlawful entry, and during sentencing for that offense, the court was

informed that Yerena-Magana had been arrested after having been “observed delivering a

truckload of watermelons in which marijuana was concealed.” Yerena-Magana was

sentenced to a jail term of 60 days.

While Yerena-Magana wasserving his 60-day sentence, the government charged him

with conspiracy1and possession2of marijuana with the intent to distribute. Pursuant to a

plea agreement, Yerena-Magana pleaded guilty to the possession charge, and the conspiracy

charge was dismissed. In the presentence report (PSR), the probation officer concluded that

Yerena-Magana unlawfully entered the United States as part of the drug offense, and

therefore, assessed no criminal history points for Yerena-Magana’s unlawful-entry sentence.3
imposed for “conduct that is relevant conduct to the instant offense under the provisions of section

1B1.3” (emphasis added)).

4

See id. § 4A1.2(a)(1) (defining a “prior sentence” as “any sentence previously

imposed . . . for conduct not part of the instant offense”).

5

See 18 U.S.C. § 3553(f) (permitting a sentencing court to disregard a statute’s minimum

sentence if it findsthe defendant meetsfive requirements, one of which isthat the defendant not have

more than one criminal history point).

6The district court also sentenced Yerena-Magana to four years of supervised release and a

$100 special assessment.

7

See U.S.S.G. § 4A1.3(b) (2004) (providing that a downward departure may be

appropriate“[i]f reliable information indicates that the defendant’s criminal history category

substantially over-representsthe seriousness ofthe defendant’s criminal history or the likelihood that

the defendant will commit other crimes . . .”).

3

Based on a total offense level of 26 and a criminal history category of I, the PSR calculated

a Guidelines imprisonment range of 63 to 78 months.

At sentencing, the district court disagreed with the PSR, concluding that YerenaMagana’s unlawful entry was not part of the drug offense, but rather a severable and distinct

offense within the meaning of section 4A1.2(a)(1) of the Guidelines.4 Therefore, the court

assessed Yerena-Magana two criminal history pointsfor his unlawful-entry sentence, which

raised his criminal history to category II and resulted in an advisory imprisonment range of

78 to 97 months. Moreover, with the addition of the two points, Yerena-Magana became

ineligible for the “safety valve” provision set forth in 18 U.S.C. § 3553(f), which permits a

sentencing court to disregard a statute’s minimum sentence.5 The district court sentenced

Yerena-Magana to a prison term of 70 months,6a downward departure from the advisory

Guidelines imprisonment range,7but in excess of the statutory five-year minimum sentence.

II

Yerena-Magana argues that the district court erred in calculating his criminal history

score. He acknowledges that the district court sentenced him below the Guidelines range
8Because the marijuana’s net weight was calculated at 976.6 kilograms, Yerena-Magana’s

statutory minimum sentence was five years. See 21 U.S.C. § 841(b)(1)(B)(vii) (setting a five-year

minimum sentence for any person convicted of possessing with the intent to distribute over 100

kilograms of marijuana); cf. id. § 841(b)(1)(A)(vii) (setting a ten-year minimum sentence for any

person convicted of possessing with the intent to distribute over 1,000 kilograms of marijuana).

9United States v. Ingles, 445 F.3d 830, 840 (5th Cir. 2006).

10U.S.S.G. § 4A1.1(a), (b) (2004).

11Id. § 4A1.2(a)(1).

12Id. § 4A1.2, cmt. n.1 (emphasis added).

4

that he contends is applicable but argues that had the district court not assigned the two

points, he would have been eligible for the safety valve provision, which would have allowed

the court to sentence him below the 60-month statutory minimum sentence.8“Although the

Sentencing Guidelines are now advisory, we continue to review the district court’s

application of the Guidelines de novo and its factual findings for clear error.”9

In calculating the criminal history score under U.S.S.G. § 4A1.1(b), a court is to add

two points to a defendant’s criminal history score “for each prior sentence of imprisonment

of at least sixty days” that was not counted in subpart (a) as a sentence “exceeding one year

and one month.”10 The Guidelines define a “prior sentence” as “any sentence previously

imposed . . . for conduct not part of the instant offense.”11 The commentary to the

Guidelines explains that “conduct not part of the instant offense” is to be determined with

reference to section 1B1.3, which defines relevant conduct:

Prior Sentence. “Prior sentence” means a sentence imposed prior to

sentencing on the instant offense, other than a sentence for conduct that is part

of the instant offense. See § 4A1.2(a). A sentence imposed after the

defendant’s commencement of the instant offense, but prior to sentencing on

the instant offense, is a prior sentence if it was for conduct other than conduct

that was part of the instant offense. Conduct that is part of the instant offense

means conduct that is relevant conduct to the instant offense under the

provisions of §1B1.3 (Relevant Conduct).12
13Id. app. C, amend. 493.

14Id. § 1B1.3(a)(1)(A).

15Id. § 4A1.2(a)(2).

5

When the Commission added the lastsentence of the foregoing commentary in 1993,

it explained the reason for doing so: “This amendment expressly provides that the term ‘part

of the instant offense’ in § 4A1.2(a)(1) means relevant conduct as defined in § 1B1.3

(Relevant Conduct) to avoid double counting and ensure consistency with other guideline

provisions.”13

Yerena-Magana asserts that his previous sentence for unlawful entry was “relevant

conduct” within the meaning of U.S.S.G. § 1B1.3, which includes “all acts and omissions

. . . that occurred during the commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or responsibility for that offense.”14

He additionally contends that his 60-day sentence for illegal entry is a not “prior sentence”

that should be considered in calculating his criminal history score under U.S.S.G. § 4A1.1,

because it was a sentence “imposed in [a] related case[]” within the meaning of U.S.S.G.

§ 4A1.2(a)(2), which provides:

Priorsentencesimposed in unrelated cases are to be counted separately. Prior

sentences imposed in related cases are to be treated as one sentence for

purposes of § 4A1.1(a), (b), and (c). Use the longest sentence of

imprisonment if concurrent sentences were imposed and the aggregate

sentence of imprisonment imposed in the case of consecutive sentences.15

Yerena-Magana arguesthat in light of “common knowledge” of the “close relationship

between illegal immigration and drug crimes emanating from the border area,” and the

temporal relation between his illegal entry and drug offense, the conclusion must be drawn

that he entered the United States illegally in preparation for his drug offense. But for his

illegal entry, he asserts, he could not have committed the drug offense, and therefore, his
16241 F.3d 392, 396 (5th Cir. 2001).

17Id.

18Id.

19Id. (quoting U.S.S.G. § 4A1.2, cmt. n.3).

20Id.

21U.S.S.G. § 4A1.2(a)(2) (2004) (“Prior sentences imposed in unrelated cases are to be

counted separately. Prior sentences imposed in related cases are to be treated as one sentence for

purposes of § 4A1.1(a), (b), and (c).”).

6

illegal entry is “relevant conduct.”

Yerena-Magana citesthis court’s decision in United States v. Salter, which employed

a “but for” analysis in applying section 4A1.2.16 In that case, Salter had prior convictions

for drug trafficking and tax evasion. The tax evasion conviction resulted from Salter’s failure

to report a profit of $75,000 from the drug trafficking that was the basis of his other prior

conviction.17 This court held that “[b]ut for the drug trafficking Salter would not have had

the $75,000.”18 The court relied on the commentary to section 4A1.2 that discusses “related

cases,” stating that “prior sentences are related ‘if they resulted from offenses that

(A) occurred on the same occasion, (B) were part of a single common scheme or plan, or

(C) were consolidated for trial or sentencing.’”19 The court held in Salter that the prior drug

trafficking and tax evasion “offensesshould have been considered part of a common scheme

or plan” and that pursuant to section 4A1.2, were to be treated as one sentence for purposes

of section 4A1.1.20

Yerena-Magana’s reliance on Salter is misplaced. The inquiry in that case was

whether Salter’stwo priorsentences were “[p]riorsentencesimposed in related cases” within

the meaning of section 4A1.2(a)(2).21 That is a different inquiry from whether a prior

sentence was imposed “for conduct not part of the instant offense” within the meaning of
22973 F.2d 1152, 1158 (5th Cir. 1992).

23Id.

24U.S.S.G. § 4A1.2(a)(1) (2004) (“The term ‘prior sentence’ means any sentence previously

imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for

conduct not part of the instant offense.”).

25Id. § 4A1.2, cmt. n.1.

7

section 4A1.2(a)(1), as this court held in United States v. Thomas.

22 The application of

subsection (2) examines the relationship between two prior sentences. The application of

subsection (1) examines the relationship between a prior sentence and the offense for which

a sentence is to be imposed. In Thomas, this court explained:

The interpretation of “conduct not part of the instant offense” is a

matter of first impression in this circuit. While Thomas argues that the critical

inquiry here should be whether the prior and instant offense are related, other

courts do not agree. See United States v. Walling, 936 F.2d 469, 471 (10th

Cir. 1991) (“The question of ‘related cases’ referred to in § 4A1.2(a)(2),

applies to the relationship between prior sentences, not the relationship

between prior sentences and the present offense.”); United States v. Garcia,

909 F.2d 389, 392 (9th Cir. 1990) (“There is no indication that the

commentary [defining ‘related cases’] was intended to define the words

‘conduct not part of the instant offense’ in sec. 4A1.2(a)(1).”). We believe the

critical inquiry is whether the prior conduct constitutes a “severable, distinct

offense” from the offense of conviction. United States v. Blumberg, 961 F.2d

787, 792 (8th Cir. 1992); see United States v. Beddow, 957 F.2d 1330, 1338

(6th Cir. 1992).23

This construction of section 4A1.2(a)(1) and (a)(2) remains the law in this circuit, with the

exception that in light of the 1993 amendments to the commentary to section 4A1.2(a), the

“critical inquiry” of what constitutes “conduct not part of the instant offense”24 focuses on

relevant conduct within the meaning of section 1B1.3.25

Accordingly, in United States v. Vargas-Garcia, this court looked to section 1B1.3

to determine whether a prior sentence for resisting arrest was relevant conduct with regard

to being found in the United States without obtaining the permission of the Attorney General
26434 F.3d 345, 346, 347-48 (5th Cir. 2005).

27Id. at 346.

28Id.

29Id. at 346-47.

30Id. at 347.

31Id. at 349.

32Id. (quoting United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995) (citing H.R.

Rep. No. 1365, 82d Cong. 2d Sess. (1952))).

33Id.

8

to reenter in violation of 8 U.S.C. § 1326.26 The illegal immigrant was stopped by local state

authoritiesfor a traffic violation. He resisted arrest and during an ensuing scuffle, told police

he had illegally returned to this country after being removed and could not allow them to

arrest him.27 He initially evaded the officers’ grasp but was captured after a brief chase.28

About three weeks later, the defendant was indicted and charged with illegal reentry after

removal. He was subsequently arrested by federal authorities and pleaded guilty to those

charges. In the meantime, the defendant had pleaded guilty to state law charges of resisting

arrest, evading arrest, and failure to identify. The district court considered the state-law

sentence for evading arrest in calculating the defendant’s criminal history score.29 The

defendant appealed, contending that his resistance of arrest was relevant conduct since he

was attempting to avoid detection and the responsibility for his illegal reentry when he

committed the state resisting-arrest offense.30 This court held that the district court did not

plainly err “if, indeed, it was error at all” in concluding otherwise.31 The court primarily

focused on the difference between the offense of illegal reentry, which “‘is complete assoon

as the entry or attempt is made’”32 and being “found in” the United States.33 The defendant

had been convicted of only the latter. But in deciding the relevant conduct issue, the court
34Id. at 350 (quoting United States v. Beddow, 957 F.2d 1330, 1339 (6th Cir. 1992)).

35Id.

36Id.

37U.S.S.G. § 1B1.3(a)(1) (2004) (“[A]ll acts and omissions . . . that occurred . . . in

preparation for that offense . . . .”).

9

reasoned that “the concept ofseparable prior offensesis based on ‘different criminal conduct

that harmed different societal interests,’ involving two or more offenses that ‘occurred at

different times and places,’”34 and that “[i]t was not plain error . . . for the district court to

conclude that Vargas-Garcia’s evasion of and resistance to arrest after a traffic stop weeks

before hisindictment for illegal reentry was a separate prior offense because it could be seen

as embodying just such conduct severable by time, place, and harmed societal interest.”35

An additional reason for the holding in Vargas-Garcia is particularly pertinent to the

arguments Yerena-Magana has made in the case presently before us. The court concluded

in Vargas-Garcia that illegal reentry does not give a defendant carte blanche under the

relevant conduct section of the Guidelines:

Moreover, adopting Vargas-Garcia’s broad conclusions would require district

courts to excise every crime committed after an alien’s actual illegal reentry

but before his discovery by law enforcement from the alien’s criminal history

at sentencing, giving convicted criminals a license to run amok based solely

on the nature of their criminality. Cf. Beddow, 957 F.2d at 1339 (affirming a

district court’s sentence and stating that adopting the “broad interpretation of

offense conduct” advanced by a defendant-appellant “would render almost

every crime committed contemporaneously with some other offense part of

that offense under U.S.S.G. § 4A1.2.”).36

There is no evidence in the record before us that Yerena-Magana intended to commit

the drug offense for which he was sentenced at the time he illegally entered the United

States. We will not infer that he illegally entered this country “in preparation for”37the drug

offense, as he requests. But even were there such evidence, the nexus between the illegal

entry on May 24, 2004 and the drug offense on June 24, 2004 is too attenuated to constitute
38See United States v. Southerland, 405 F.3d 263, 268-69 (5th Cir. 2005) (stating that “[i]n

determining whether the flight and the offense of conviction are connected sufficiently, we look

primarily to any evidence of the defendant’s state of mind while fleeing” and concluding that the

defendant’s state of mind in fleeing related to ongoing offenses of automobile theft and drug

possession, not bank robbery committed two months earlier).

39Id. at 268.

40U.S.S.G. § 1B1.3(a)(2) (2004).

41Id. cmt. n.9 (discussing the phrases “common scheme or plan” and “same course of

conduct”).

10

“preparation for that offense.”38 The illegal entry made the drug crime possible only in the

most philosophic and metaphysical sense. The illegal entry was a “discrete, noncontinuing

offense . . . completed prior to”39 the drug offense, which harmed differentsocietal interests.

Yerena-Magana does not contend, and we do not consider, whether the illegal entry

offense must be grouped with the drug offense under section 3D1.2(d). We therefore have

no occasion to consider whether the illegal entry was “part of the same course of conduct or

common scheme or plan as the offense of conviction,” within the meaning of section

1B1.3(a)(2),40 or note 9 in the commentary to that section.41

Yerena-Magana arguesthat his unlawful entry isrelevant conduct to the present drug

offense because the sentencing judge in his unlawful-entry case “surely would have imposed

a sentence of less than sixty days . . . but for the drug connection.” This argument is

unsupported by the record. While the record does reveal that the sentencing judge in

Yerena-Magana’s unlawful-entry case wasinformed that Yerena-Magana had been arrested

while in possession of marijuana, there is no evidence indicating, as Yerena-Magana avers,

that his drug possession “is why [the judge] imposed a 60-day jail sentence.” Accordingly,

we conclude that the district court did not clearly err in finding that Yerena-Magana’s

unlawful entry was not relevant conduct to the instant drug offense.

* * * 

For the foregoing reasons, we AFFIRM the sentence imposed by the district court.