United States Court of Appeals

Fifth Circuit



## FILED

April 3, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

02-20392

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN JOSE DIAZ-DIAZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

Before GARWOOD, SMITH, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Juan Jose Diaz-Diaz contests a 16-level sentencing

enhancement. Pursuant to a guilty plea, he was convicted for

illegal presence in the United States in September 2000, following

deportation af ter having been convicted of an aggravated felony.

See 8 U.S.C. § 1326(a) and (b)(2). The enhancement, not objected

to at sentencing in 2002, was under the then-in-effect 2001 version

of Sentencing Guidelines § 2L1.2(b)(1)(A)(iii)(enhancement for “a

firearms offense”). Primarily at issue is whether, in applying

that version, the district court committed a plain error violation

of the Ex Post Facto Clause, U.S. C ONST

. art. I, § 10, cl. 1.

AFFIRMED

.2 I.

Diaz, a citizen of Honduras, was convicted in Texas state

court in 1997 for possession of a prohibited weapon — a shortbarrel firearm — in violation of T EX

. P ENAL C ODE § 46.05. Diaz was

deported in 1998.

In September 2000, the INS discovered Diaz in a Texas jail; he

had been arrested for forgery of a government instrument. Diaz had

not received permission to return to the United States. In October

2001, Diaz was charged with being illegally present in the United

States. See 8 U.S.C. § 1326(a) and (b)(2). That November, he

pleaded guilty to the charge.

In April 2002, the district court, applying the then-in-effect

2001 version of the guidelines, determined, pursuant to Guidelines

§ 2L1.2(b)(1)(A)(iii), that Diaz’ base of fense level should be

increased by 16 because of his prior conviction for “a firearms

offense”. Diaz did n ot object to the enhancement. Following an

acceptance of responsibility reduction, the guidelines range was 57

to 71 months. Diaz was sentenced, i nter alia

, to a 57-month prison

term.

II.

Diaz contends: (1) the enhancement violated the Ex Post Facto

Clause; and (2) the “felony” and “aggravated felony” provisions of

8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. For the first3

issue, there was no plain error; the second is presented only to

preserve it for possible Supreme Court review.

A.

“A sentencing court must apply the version of the sentencing

guidelines effective at the time of sentencing unless application

of that ve rsion would violate the Ex Post Facto Clause of the

Constitution.” U nited States v. Kimler

, 167 F.3d 889, 893 (5th

Cir. 1999). Such a violation occurs when application of a current

guideline “results in a more onerous pe nalty” than would

a pplication of a guideline in effect at the time of the offense.

Id

. Accordingly, in claiming an e x post facto violation, Diaz

maintains he should have been sentenced under the 2000, rather than

the 2001, version of the guidelines, based on his claim that, under

the former, he would not have been subject to the enhancement.

The Presentence Investigation Report (PSR), using t he 2001

version, recommended the enhancement pursuant to §

2L1.2(b)(1)(A)(iii) (“a firearms offense”). The PSR based this

recommendation on the following: “The prohibited firearm possessed

by [Diaz] was a short barreled shotgun and is the type described in

26 U.S.C. § 5845(a) ”. (Emphasis added.) (The “described in”

langua ge is discussed i nfra in part II.A.2., concerning an

alternate basis urged by the Government for there being no ex post

facto violation.)4

During sentencing, Diaz’ attorney did not object to the

enhancement. To the contrary, he agreed that Diaz’ prior firearms

conviction “certainly is a 16-level enhancement with the

categorical approach [used by the 2001 version for ‘a firearms

offense’]. All firearm offenders ... automatically [receive a] 16-

level enhancement”.

As Diaz concedes on appeal, because he failed to object to the

enhancement, including failing to raise in district court the e x

post facto claim belatedly presented now, his c laim is reviewed

only for plain error. E .g., United States v. Calverley

, 37 F.3d

160, 162 (5th Cir. 19 94) (en banc), c ert. denied

, 513 U.S. 1196

(1995). Under this standard, we will reverse a district court’s

decision only if there was a “clear” or “obvious” error that

affected a defendant’s substantial rights. E .g., United States v.

Olano

, 507 U.S. 725, 732-34 (1993). Even then, we have discretion;

generally, we will reverse only if the error “seriously affects the

fairness, integrity, or public reputation of judicial proceedings”.

Id . at 732 (citations omitted).

For the 2001 version of § 2L1.2 in effect at the time of

sentencing, Diaz is subject to the enhancement. Therefore, our e x

post facto analysis keys on whether Diaz would have been subject to

the same enhancement under the 2000 version, which was in effect at

the time of his offense.5

The applicable guideline under the 2001 version is §

2L1.2(b)(1)(A)(iii) (enhancement for “a firearms offense”). Under

the 2000 version, the applicable guideline is § 2L1.2(b)(1)(A); a

16-level enhancement was appropriate when the prior conviction was

an “aggravated felony”, as defined in 8 U.S.C. § 1101(a)(43).

U.S.S.G. § 2L1.2, cmt. n.1 (2000). The Government maintains shortbarrel firearm possession qualifies as such an “aggravated felony”

in either of two way s under 8 U.S.C. § 1101(a)(43): (1) under

subsection (F), as a “crime of violence”; and (2) under subsection

(E)(iii), as an offense “described in” 26 U.S.C. § 5861.

Of course, because Diaz did not object to the enhancement

under the 2001 version discussed in the PSR, the district court did

not conduct the ex post facto analysis in which we must now engage,

including whe ther Diaz would have received the same enhancement

under the 2000 version. Restated, Diaz’ failure to object obviated

the district court’s engaging in an analysis of the 2000 version;

that version was never mentioned to it. The question, for our

extremely narrow plain error analys is, is whether the district

court committed, inter alia

, a “clear” or “obvious” error in

applying the 2001 guidelines.

Concomitantly, the Government was called upon, for the first

tim e on appeal, to present bases for upholding that application,

including demonstrating D iaz would have received the same

enhancement under the 2000 version. In so doing, it referenced,6

inter alia

, subsection (E)(iii) of 8 U.S.C. § 1101(a)(43), as

incorporated by the 2000 version. Post oral argument, the parties

were permitted to submit supplemental briefs on that subsection.

As discussed infra

, that subsection is the basis for there being no

plain error.

1.

One basis for a 16-lev el enhancement for an “aggravated

felony” pursuant to the 2000 version of § 2L1.2(b)(1)(A) is

subsection (F) of the incorporated 8 U.S.C. § 1101(a)(43): “a

crime of violence (as defined in [18 U.S.C. §] 16 ...) for which

the term of imprisonment [is] at least one year”. The Government

claims Diaz’ firearm conviction was such a “crime of violence”

under § 16(b) (“any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force against the

person or property of another may be used in the c o urse of

committing the offense ” (emphasis added)).

Un ited States v. Chapa-Garza , 243 F.3d 921 (5th Cir. 2001),

established the framework for determining whether an offense is a

§ 16(b) “crime of violence”. First, a categorical approach is

employed

— “whether a particular defined offense, in the abstract,

is a crime of violence under

... § 16(b)”. I d

. at 924. Second,

the offense, “in the abstract”, must present “the substantial

likelihood that the offender will intentionally employ force7

against the person or property of another in order to effectuate

the commission of the offense ”. Id . at 927 (emphasis added).

Pursuant to the Chapa-Garza framework, Unit ed States v.

Hernandez-Neave

, 291 F.3d 296, 299 (5th Cir. 2001), held the Texas

offen se of unlawfully carrying a firearm on premises licensed to

sell alcoholic beverages, T EX

. P ENAL C ODE § 46.02, was not a § 16(b)

crime of violence:

In the ca se of unlawfully carrying a firearm

onto premises licensed for the sale of

alcoholic beverages, physical force against

the person or property of another need not be

used to complete the crime

. The crime is

completed by simply stepping over a threshold

while carrying such a weapon.

(Emphasis added.)

Similarly , the Texas statute under which Diaz was convicted

requires only that a defendant “knowingly possess[], manufacture[],

transport[], repair[], or sell[]

... a short-barrel firearm”. T E X

.

P ENAL C ODE § 46.05. As in H ernandez-Neave

, “physical force against

the person or property of anothe r need not be used to complete

[that] crime”. 291 F.3d at 299. Instead, it is complete upon,

inter alia , mere knowing possession of the weapon.

Nevertheless, the Government relies upon U nited States v.

Rivas-Palacios

, 244 F.3 d 396, 398 (5th Cir. 2001), which held

possession of a sawed-off shotgun was a § 16(b) “crime of

violence”. Rivas-Palacios , rendered only eight days after ChapaGarza , failed to apply its framework. In this regard, Hernandez-8

Neave noted: “[T]o the extent that Rivas-Palacios conflicts with

our holding

... it also conflicts with Chapa-Garza

. When panel

opinions appear to conflict, we are bound to follow the earlier

opinion”. 291 F.3d at 300 (internal quotations omitted).

Consequentl y, R ivas-Palacios does not preclude our holding that

possession of a short-barrel firearm is not a § 16(b) “crime of

violence”.

2.

Another basis for a 16-level enhance ment for an “aggravated

felony” pursuant to the 2000 version of § 2L1.2(b)(1)(A) is

subsection (E)(iii) of the incorporated 8 U.S.C. § 1101(a)(43): an

“offense described in

... [26 U.S.C. §] 5861

... (relating to

firearms offenses)”. Section 5861(d) provides: “It shall be

unlawful for any person ... to receive or possess a firearm which

is not registered to him in the National Firearms Registration and

Transfer Record”. A “firearm” is defined as, i nter alia

, “a

shotgun having a barrel

... less than 18 inches in length”. 26

U.S.C. § 5845(a)(1).

In this regard, the unobjected-to PSR stated: “The prohibited

firearm possessed by [Diaz] was a short-barreled shotgun and is the

type described in 26 U.S.C. § 5845(a)”, cited here in the preceding

paragraph. (Emphasis added.) Section 5845(a) was referenced in

the PSR because, for subsection (A)(iii) of the 2001 version of §

2L1.2(b)(1), the operative “a firearms offense” is defined, in9

part, as: “An offense under federal, state, or local law that

prohibits the possession of a firearm described in 26 U.S.C. §

5845(a)”. Cmt. 1(B)(v)(II) (emphasis added).

Similarly, T EX

. P ENAL C ODE § 46.05( a)(3) prohibits knowing

possession of a short-barrel firearm, defined as

, i nter alia

, “a

shotgun with a barrel length less than 18 inches”. T E X

. P ENAL C ODE

§ 46.01 (10). It is a defense to a violation of § 46.05 that the

“possession was pursuant to registration pursuant to the National

Fi rearms Act [28 U.S.C. § 5801 e t seq. ]”. T E X

. P ENAL C ODE §

46.05(c). (There is nothing in the record concerning whether Diaz

raised this defe nse against his 1997 conviction under the Texas

statute.)

Accordingly, 26 U.S.C. § 5861 is almost identical to T EX

. P ENAL

C ODE § 46.05. Each proscribes possession of the same type of

firearm. Each concerns possession of short-barrel firearms and

registration vel non under the National Firearms Act; registration

is a defense under Texas law, while non-registration is an element

of the federal offense. (Also, the Texas statute incorporates

other defenses to prosecution, not present in the federal statute.

T EX

. P ENAL C ODE § 46.05(b)(conduct incid ental to performance of

governmental duty) and (d)(dealing in collectibles).)

Despite subsection (E)(iii)’s classification of “offense[s]

described in [26 U.S.C. §] 5861” as “aggravated felonies”, Diaz

contends state statutes similar to § 5861 should not be construed10

as such felonies be cause Congress specifically cited a federal

statute (§ 5861) instead of using a more generic term. Diaz offers

no authority for this proposition. Moreover, subsection (E)(iii)

encapsulates any offense that is sufficiently similar to § 5861 as

to be “described” therein.

Diaz maintai ns U nited States v. Villanueva-Gaxiola

, 119 F.

Supp. 2d 1185 (D. Kan. 2000), offers a basis for holding § 46.05 is

not “an offense described in” § 5861. V illanueva-Gaxiola held the

California offense of unlawful possessi o n of a short-barreled

shotgun was not an offense “described in” § 5861. 119 F. Supp.2d

at 1188. The California statute neither included non-registration

as an element of the offense nor allowed a registration defense.

Villanueva-Gaxiola ’s holding was premised on its concluding that

the essence of the state and federal statutes

are not the same. 26 U.S.C. § 5861 hinges on

the fact that a person has not registered his

... short-barreled shotgun, not on the fact

that a person simply possesses a shortbarreled shotgun. One could thus comply with

the [federal] statute by registering his or

her short-barreled shotgun

... but could still

violate [the] California [statute] by simply

possessing the short-barreled shotgun (whether

registered or not).

Id . at 1189.

Unlike the California statute, T EX

. P ENAL C ODE § 46.05 does not

differ from the federal statute in any meaningful way. The Texas

statute does incorporate national registration as a defense. Along

this line, Diaz contends that, because registration is a defense to11

the Texas statute, rather than an element of the offense, the Texas

statute is not “described in” § 5861. He maintains that, because

a defendant is obligated to produce evidence with regard to

registration , a defendant may be convicted of the Texas offense

while still complying, through federal registration, with § 5861.

Therefore, according to Diaz, a conviction under the Texas statute

does not “hinge” o n a defendant’s registration v el non

. I d

. at

1189.

Had the district court at least been called upon at sentencing

to consider the question at hand, it certainly would not have been

a “clear” or “obvious” error for it to conclude that the Texas

offense was “de scribed in” § 5861. In the light of subsection

(E)(iii) of 8 U.S.C. § 1101(a)(43), as used in the 2000 version, we

conclude that application of the 2001, instead of the 2000, version

was not plain error. Restated, concerning an e x post facto

violation vel non , there was no plain error.

B.

In contending 8 U .S.C. § 1326(b)(1) and (2) are

unconstitutional in the light of Apprendi v. New Jersey , 530 U.S.

466 (2000), Diaz concedes this issue is foreclosed by AlmendarezTorres v. United States

, 523 U.S. 224 (1998). He raises it only to

preserve it for possible Supreme Court review.12 III.

For the foregoing reasons, the judgment is

AFFIRMED.