IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40088

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

SAUL GARCIA-SANCHEZ, also known as Enrique Bardales-Montano, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:17-CR-1263-1

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

PER CURIAM:*

Defendant-Appellant Saul Garcia-Sanchez appeals his 37-month 

sentence of imprisonment following his guilty plea conviction of illegal reentry 

after deportation. We affirm. 

I. Facts & Procedural History

Garcia-Sanchez is a citizen of El Salvador not authorized to live in the 

United States. He was apprehended by Customs and Border Protection agents 

in Texas in July 2017. Prior to this incident, Garcia-Sanchez had been deported 

 

* Pursuant to 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 21, 2019

Lyle W. Cayce

Clerk

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on six different occasions between 2000 and 2017 and was also convicted of 

illegal reentry as a previously removed alien in July of 2007. He also has a 

history of committing non-immigration related crimes in the United States. 

In October of 2017, Garcia-Sanchez pled guilty to one count of illegal 

reentry following deportation. The presentence report (PSR) assessed a fourlevel enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(D) because GarciaSanchez was convicted of “any other felony offense (other than an illegal 

reentry offense)” after he was first ordered deported or removed from the 

United States. The enhancement was based on a prior 2011 felony conviction 

for second degree commercial burglary in the Superior Court of California for 

the County of Ventura, Case No. 2011024399. After re-classification of his 

three convictions from that case, the PSR provided that Garcia-Sanchez was 

actually convicted of two felonies: burglary (Count Two) and second degree 

commercial burglary (Count Three).1 He was initially sentenced to 36 months 

of probation with 365 days of custody as to both felony counts but on December 

6, 2012, the sentences were modified to concurrent terms of 16 months of 

imprisonment on each count. Then on June 12, 2013, the sentences were again 

amended to consecutive terms of 16 months of imprisonment on Count Two 

and eight months of imprisonment on Count Three, for a total of 24 months of 

imprisonment. 

Here, because the aggregate total sentence imposed for the two prior 

felonies was two years or more, the probation officer reasoned that, pursuant 

 

1 As to Case No. 2011024399, the PSR provided that although Garcia-Sanchez was 

initially convicted of three counts of second degree commercial burglary, Counts Two and 

Four were reclassified as misdemeanor burglaries on March 27, 2017. Then, prior to 

sentencing, the probation officer issued a supplemental addendum to the PSR explaining 

that, upon further review, Garcia-Sanchez’s burglary conviction in Count Two constituted a 

felony offense. Consequently, Garcia-Sanchez was convicted of two felonies in that case: (1) 

burglary (Count Two) and (2) second degree commercial burglary (Count Three). 

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to § 2L1.2(b)(3)(B), an eight-level enhancement was warranted. GarciaSanchez objected to the enhancement at sentencing. He argued that because 

the convictions were for different counts and the sentences were ordered to run 

consecutively, the enhancement should have been based on the greatest single 

sentence, i.e., 16 months of imprisonment, rather than the aggregate sentence

for both felonies of 24 months. The probation officer explained that because 

there was no intervening arrest, Garcia-Sanchez’s consecutive sentences were 

added together and treated as a single sentence. The probation officer also 

noted that she had contacted the Sentencing Commission and confirmed that 

the eight-level enhancement applied. Garcia-Sanchez challenged the 

application of § 4A1.2(a)(2)’s “single sentence rule” to offense-level 

enhancements under § 2L1.2(b)(3), arguing that the rule was limited to the 

calculation of a defendant’s criminal history points. 

The district court overruled Garcia-Sanchez’s objection. GarciaSanchez’s total offense level of 17, combined with his criminal history category 

of IV, resulted in a Guidelines imprisonment range of 37 to 46 months. The 

district court sentenced him at the bottom of that range to 37 months of 

imprisonment and issued a $100 special assessment. This appeal ensued. 

II. Standard of Review

Garcia-Sanchez objected to the § 2L1.2(b)(3)(B) enhancement at 

sentencing so “[we] review the district court’s interpretation and application of 

the sentencing guidelines de novo and its findings of fact for clear error.” See

United States v. Martinez-Lugo, 782 F.3d 198, 201 (5th Cir. 2015) (citation 

omitted).

III. Discussion

On appeal, Garcia-Sanchez argues that the district court erred in 

assessing the 8-level enhancement under § 2L1.2(b)(3)(B). More specifically, he

contends that the district court erroneously applied the § 2L1.2(b)(3)(B)

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enhancement after aggregating his prior sentences resulting from his two prior

California felony convictions—16 months for Count Two plus 8 months for 

Count Three—rather than using the greatest single sentence imposed for his 

highest prior individual felony offense—16 months for Count Two. The 

government responds that the district court properly aggregated GarciaSanchez’s sentences for his two prior felony convictions under the single 

sentence rule of U.S.S.G. § 4A1.2(a)(2), thereby warranting the 8-level 

enhancement. 

At oral argument, the government raised the issue of the effect of 

Amendment 802 to § 2L1.2 of the Guidelines and Garcia-Sanchez was afforded 

an opportunity to respond at that time. U.S.S.G. § 2L1.2, Amend. 802 

(Supplement to Appendix C (November 1, 2016)). Thereafter, in response to

this court’s directive, the parties submitted post-oral argument supplemental 

letter briefs discussing the implications of Amendment 802 to U.S.S.G. § 2L1.2. 

Considering the parties’ responses, the applicable case law, and the record 

evidence, we now turn to the issue on appeal—whether the single sentence rule 

of § 4A1.2(a)(2) applies to offense-level enhancements under § 2L1.2(b)(3).

U.S.S.G. § 2L1.2(b)(3) provides: 

(Apply the Greatest) If, at any time after the defendant 

was ordered deported or ordered removed from the 

United States for the first time, the defendant engaged 

in criminal conduct resulting in—

(A) a conviction for a felony offense (other than an 

illegal reentry offense) for which the sentence imposed 

was five years or more, increase by 10 levels;

(B) a conviction for a felony offense (other than 

an illegal reentry offense) for which the 

sentence imposed was two years or more, 

increase by 8 levels; 

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(C) a conviction for a felony offense (other than 

an illegal reentry offense) for which the 

sentence imposed exceeded one year and one 

month, increase by 6 levels; 

(D) a conviction for any other felony offense (other 

than an illegal reentry offense), increase by 4 levels; or

(E) three or more convictions for misdemeanors that 

are crimes of violence or drug trafficking offenses, 

increase by 2 levels.

Id. (emphasis added). The commentary to § 2L1.2 states that “sentence 

imposed” has the same meaning as “sentence of imprisonment” in Application 

Note 2 and subsection (b) of § 4A1.2. See U.S.S.G. § 2L1.2 cmt. n.2. In turn, § 

4A1.2(b)(1) states that the term “sentence of imprisonment” means a sentence 

of incarceration and refers to the maximum sentence imposed. Application 

Note 2 to § 4A1.2 provides that “[t]o qualify as a sentence of imprisonment, the 

defendant must have actually served a period of imprisonment on such 

sentence.” We observe that Application Note 2 specifically cross-references § 

4A1.2(a)(3) & (b)(1)-(2) and § 4A1.1(a),(b),(c) but does not specifically crossreference the single sentence rule in § 4A1.2(a)(2). The single sentence rule in 

§ 4A1.2(a)(2) provides:

If the defendant has multiple prior sentences, 

determine whether those sentences are counted 

separately or treated as a single sentence. Prior 

sentences always are counted separately if the 

sentences were imposed for offenses that were 

separated by an intervening arrest (i.e., the defendant 

is arrested for the first offense prior to committing the 

second offense). If there is no intervening arrest, prior 

sentences are counted separately unless (A) the 

sentences resulted from offenses contained in the 

same charging instrument; or (B) the sentences were 

imposed on the same day. Treat any prior sentence 

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covered by (A) or (B) as a single sentence. See also § 

4A1.1(e).

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

if prior sentences are treated as a single 

sentence, use the longest sentence of 

imprisonment if concurrent sentences were 

imposed. If consecutive sentences were 

imposed, use the aggregate sentence of 

imprisonment.

Id. (emphasis added). The primary dispute in this appeal is whether the 

district court properly applied the single sentence rule of § 4A1.2(a)(2) to 

Garcia-Sanchez’s prior California felony convictions resulting in an 8-level 

enhancement under § 2L1.2(b)(3)(B). Garcia-Sanchez argues that the district 

court should not have aggregated the two felony sentences and instead should 

have used the longest of the two which would have resulted in a 6-level 

enhancement under § 2L1.2(b)(3)(C). The government argues that the district 

court’s use of the § 4A1.2(a)(2) single sentence rule to aggregate GarciaSanchez’s prior felony sentences was correct, thereby warranting the 8-level 

enhancement under § 2L1.2(b)(3)(B). We agree for several reasons. 

There is little controlling case law in this circuit on whether the single 

sentence rule in § 4A1.2(a)(2) applies to a sentencing court’s application of 

offense-level enhancements under § 2L1.2(b)(3) so we begin by reviewing the

cases that do speak to this issue. In United States v. Ponce-Flores, 900 F.3d 

215, 216–17 (5th Cir. 2018), this court dealt with a factual and procedural 

background similar to those set forth herein, except that the standard of review 

in Ponce-Flores was plain-error whereas here, we are conducting a de novo 

review of the district court’s application of the Guidelines. See Martinez-Lugo, 

782 F.3d at 201. In Ponce-Flores’s case, his three sentences were imposed on 

the same day and resulted from offenses listed in the same charging 

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instrument. Id. at 216. Ponce-Flores’s two-year and four-year sentences were 

to be served concurrently while his one-year and four-year sentences were to 

be served consecutively. Id. The district judge aggregated the one-year and 

four-year consecutive sentences under § 4A1.2(a)(2)’s single sentence rule and 

assessed a 10-level enhancement under § 2L1.2(b)(2)(A). Id. at 217. The issue 

in Ponce-Flores was whether the district court plainly erred when it applied 

the enhancement after aggregating Ponce-Flores’s prior felony sentences 

under § 4A1.2(a)(2)’s single sentence rule. Id. at 216. We concluded that the 

district court did not plainly err, based on “the absence of binding precedent, 

the lack of an uncomplicated resolution based on the language of the 

Guidelines, and the persuasive authority from the Fourth Circuit [in MartinezVarela, 531 F.3d 298 (4th Cir. 2008)]. Id. at 219.

As we did in Ponce-Flores, we again find the Fourth Circuit’s opinion in 

Martinez-Varela instructive here. In that case, the sentencing court applied a 

16-level enhancement under a prior version of the Guidelines after aggregating 

the defendant’s three prior drug trafficking sentences under the single 

sentence rule. See 531 F.3d at 298–99; U.S.S.G. §§ 4A1.2(a)(2); 2L1.2(b)(1). 

Reviewing for abuse of discretion, id. at 299, the Fourth Circuit affirmed, 

explaining as follows:

While the cross-referenced provisions do not 

address aggregation, § 4A1.1’s Commentary 

states that “[t]he definitions and instructions in 

§ 4A1.2 govern the computation of the criminal 

history points. Therefore, §§ 4A1.1 and 4A1.2 

must be read together.” This Commentary provides 

us with strong evidence that these two provisions 

should be read together in determining [the 

defendant’s] criminal history points. Thus, based on 

the instructions from the guidelines themselves, 

guidance from the relevant provisions in question, and 

the lack of any persuasive or direct precedent to the 

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contrary, we conclude that the district court properly 

aggregated [the defendant’s] sentences.

Id. at 301–02 (emphasis added). The Fourth Circuit’s holding appears to be 

supported by § 2L1.2 Application Note 2’s cross-reference to § 4A1.1. To clarify, 

if §§ 4A1.1 and 4A1.2 must be read together, and § 2L1.2 cross-references § 

4A1.1, then 4A1.2 is implicitly included in that cross-reference.2 The result 

from this inclusion is that § 4A1.2(a)(2)’s single sentence rule is applicable to 

offense-level enhancements analyzed under § 2L1.2(b)(3). We find the Fourth 

Circuit’s reasoning in Martinez-Varela persuasive. We acknowledge that 

Chapter Four of the Guidelines addresses criminal history rules whereas here, 

we are reviewing offense-level enhancements under § 2L1.2. We are not 

persuaded, however, that the Chapter Four criminal history rules should not 

guide the calculation of offense-level enhancements under § 2L1.2(b)(3). 

Amendment 802 to U.S.S.G. § 2L1.2 becomes enlightening at this point. 

U.S.S.G. § 2L1.2, Amend. 802 (Supplement to Appendix C (November 1, 2016)).

Amendment 802’s section titled “Reason for Amendment,” subsection 

“Accounting for Other Prior Convictions,” states in part that:

The Commission concluded that the length of sentence 

imposed by a sentencing court is a strong indicator of 

the court’s assessment of the seriousness of the 

predicate offense at the time, and this approach is 

consistent with how criminal history is generally 

scored in the Chapter Four of the Guidelines Manual.

. . .

The Commission determined that a sentence-imposed 

approach is consistent with the Chapter Four criminal 

history rules, easily applied, and appropriately 

 

2 This conclusion is further underscored by the fact that Application Note 2 of § 2L1.2 

also cross-references parts of § 4A1.2. 

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calibrated to account for the seriousness of prior 

offenses.

Id. at 157–58. Later, the Amendment contains a section titled “Excluding Stale 

Convictions” which states that:

For all three specific offense characteristics, the 

amendment considers prior convictions only if the 

convictions receive criminal history points under the 

rules in Chapter Four. Counting only convictions that 

receive criminal history points addresses concerns 

that the existing guideline sometimes has provided for 

an unduly severe enhancement based on a single 

offense so old it did not receive criminal history points. 

The Commission’s research has found that a 

defendant’s criminal history score is a strong 

indicator of recidivism risk, and it is therefore 

appropriate to employ the criminal history rules 

in this context. See U.S. Sent. Comm’n, Recidivism 

Among Federal Offenders: A Comprehensive 

Overview (2016). The limitation to offenses 

receiving criminal history points also promotes 

ease of application and uniformity throughout 

the guidelines. See 28 U.S.C. § 994(c)(2) (directing 

the Commission to establish categories of offenses 

based on appropriate mitigating and aggravating 

factors); cf. USSG §2K2.1, comment. (n.10) (imposing 

enhancements based on a defendant’s predicate 

convictions only if they received criminal history 

points).

Id. at 159 (emphasis added).3 The language in these sections supports the 

Fourth Circuit’s determination that Chapter 4’s criminal history rules are 

properly used to guide the calculation of offense-level enhancements under § 

2L1.2(b)(3). This conclusion is further bolstered by the Guidelines’ own 

acknowledgment that they are to “be applied as a ‘cohesive and integrated 

 

3 Amendment 802 also features a section titled “Application of the ‘Single Sentence 

Rule.” Unfortunately, it is not instructive as to the issue on appeal here. Id. at 159.

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whole’ rather than in a piecemeal fashion.” U.S.S.G. § 1B.11, background (U.S.

SENTENCING COMM’N 2004) (citing United States v. Stephenson, 921 F.2d 438 

(2d Cir. 1990)).

For these reasons, we hold that the district court did not err in applying 

the single sentence rule of § 4A1.2(a)(2) to aggregate Garcia-Sanchez’s prior 

felony convictions. Consequently, the district court’s assessment of an 8-level 

enhancement under § 2L1.2(b)(3)(B) was warranted.

IV. Conclusion

Garcia-Sanchez’s sentence is affirmed.

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