## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 25 2003 

### PATRICK FISHER Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. SANTIAGO CASTRO-ROCHA, also known as Juan Blanco-Montisima,

Defendant-Appellant. No. 02-1106

Appeal from the United States District Court for the District of Colorado (D.C. No. 01-CR-404-B)

Submitted on the briefs: John W. Suthers, United States Attorney; Gregory Go ldberg, Assistant United States Attorney, Denver, Colorado, for Plaintiff-Ap pellee. Michael G. Katz, Federal Public Defender, Warren R. Williamson, Assistant Federal Public Defender, Madeline S. Cohen, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Before HENRY , MURPHY , and O’BRIEN , Circuit Judges.

MURPHY , Circuit Judge.1 On January 9, 2003, the United States filed a Motio n to Dismiss Appeal

and Vacate Oral Argument (the “Motion”). In the Mo tion, the United States asserted that this appeal was moot because Castro-R ocha had completed his term of imprisonment. In response to the Motion, this c ourt ordered the parties to file supplemental briefs addressing the question whetherthis appeal is moot. In response, the United States moved to withdraw the M otion. The United States -2- After examining the briefs and appellate record, th is three-judge panel determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, on January 14, 2003, this court entere d an order directing that the case be submitted without oral argument. Santiago Castro-Rocha pleaded guilty to illegally r eentering the United States after deportation in violation of 8 U.S.C. § 1326. The district court sentenced him to a fifteen-month prison term, follo wed by three years of supervised release. In calculating the appropriate sentence under the 2001 version of the United States Sentencing Guidelines (“U.S.S.G.”), the district court increased Castro-Rocha’s offense level by eight pur suant to U.S.S.G. § 2L1.2(b)(1)(C). Over a defense objection, the dist rict court concluded that Castro-Rocha was subject to the 2001 version of § 2 L1.2(b)(1)(C) because his prior Texas state drug conviction constituted an “a ggravated felony.” CastroRocha appeals. This court exercises jurisdiction p ursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirms

. 1recognized that if Castro-Rocha were to prevail on the merits of his claim, his

offense level would decrease from 13 to 10 and his sentencing range would decrease from 15-21 months’ imprisonment to 8-14 mo nths’ imprisonment. Because, in that circumstance, the district court c ould choose to impose a term of imprisonment of less than one year, the district co urt could also choose to impose a lesser term of supervised release, or no term of supervised release at all. Compare U.S.S.G. § 5D1.1(a) (providing that a court shallimpose a term of supervised release if it imposes a sentence of impr isonment of more than one year) and id. § 5D1.2(a) (providing that if a term of supervisedrelease is imposed, the length of the term shallbe “at least two years but not more than three years for a defendant convicted of a Class C or D felony), with id. § 5D1.1(b) (providing that a court mayorder a term of supervised release to follow a term of imprisonment of less than one year). Acc ordingly, if Castro-Rocha were to prevail on the merits of this appeal, the distri ct court could grant him effective relief by either shortening or eliminating his term of supervised release. As noted by Castro-Rocha in his supplemental brief, and reco gnized by the United States in its request to withdraw the Motion, every circuit t hat has addressed this circumstance has concluded that the appeal is not m oot. See United States v. Molak, 276 F.3d 45, 48 (1st Cir. 2002); United States v. Verdin , 243 F.3d 1174, 1178 (9th Cir. 2001); Dawson v. Scott , 50 F.3d 884, 886 n.2 (11th Cir. 1995). We join these circuits and hold that a defendant’s une xpired term of supervised release, which could be reduced by a favorable appe llate decision, is sufficient to defeat a claim of mootness. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 95 (1998) (“[E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also t hat of the lower courts in a cause under review, even though the parties are prepared to concede it.” (quotations omitted)). -3- The facts relevant to the disposition of this appea l are undisputed. CastroRocha is a citizen of the Republic of Mexico. In April of 2001, he was convicted in Texas state court of possession of a controlled substance and sentenced to a one-year term of imprisonment (suspended), two year s probation, and a $1500 fine. The conviction for simple possession amounte d to a felony under Texas law. Castro-Rocha was deported to Mexico in July o f 2001.-4-

In October of 2001, Castro-Rocha was found in Color ado. He had not obtained the express consent of the Attorney Genera l to reapply for admission into the United States. That same month, he was ch arged in a one-count indictment with illegally reentering the United States after a prior deportation in violation of 8 U.S.C. § 1326. Castro-Rocha pleaded guilty to reentering the United States in violation of § 1326 in exchange fo r the government’s promise to

recommend that he be sentenced at the bottom of the applicable sentencing guideline range. The United States Probation Office prepared a prese ntence report (“PSR”)

which concluded that Castro-Rocha’s offense level w as thirteen. In making this calculation, the PSR set Castro-Rocha’s base offens e level at eight pursuant to U.S.S.G. § 2L1.2(a). The PSR then increased his of fense level by eight levels, concluding that the Texas simple possession convict ion constituted an “aggravated felony” for purposes of the 2001 versio n of U.S.S.G. § 2L1.2(b)(1)(C). The PSR then reduced the offense l evel by three for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Th e resulting total offense level of thirteen, when coupled with Castro-Rocha’s crimi nal history category of II, resulted in a sentencing range of fifteen to twenty -one months. Castro-Rocha filed a single objection to the PSR. In his objection, he recognized that in United States v. Cabrera-Sosa , 81 F.3d 998, 999-1001 (10th-5-

Cir. 1996), this court held that a state felony con viction for simple possession constituted an “aggravated felony” for purposes of the pre-2001 version of § 2L1.2. He asserted, however, that the amendments t o § 2L1.2 adopted on November 1, 2001, required a reexamination of the q uestion whether a state felony conviction for simple possession constitutedan “aggravated felony” for purposes of § 2L1.2(b)(1)(C). The district court o verruled Castro-Rocha’s objection, concluding both that it was bound by Cabrera-Sosaand that it was not necessary to adopt the definition of “aggravated fe lony” advocated by CastroRocha in order to give effect to the November 1, 20 01 amendment to § 2L1.2. The sole question in this case is whether the distr ict court erred in concluding that a state felony conviction for simpl e possession of a controlled substance is an “aggravated felony” for purposes of the 2001 version of U.S.S.G. § 2L1.2(b)(1)(C). The district court’s interpretat ion of the sentencing guidelines is a legal question subject to de novo review. United States v. Holbert , 285 F.3d 1257, 1259 (10th Cir. 2002). Prior to November 1, 2001, the effective date of th e amendments at issue in this case, § 2L1.2(b) provided as follows:

(1) If the defendant previously was deported after a criminal conviction, or if the defendant unlawfully remained in the United States following a removal order issued after a cri minal conviction, increase [the base offense level] as follows (if mo re than one applies, use the greater):-6- (A) If the conviction was for an aggravated felony, increase by 16 levels. (B) If the conviction was for (i) any other felony, or (ii) three or more misdemeanor crimes of violenc e or misdemeanor controlled substance offenses, increase by 4 levels. U.S.S.G. § 2L1.2(b) (2000). In Cabrera-Sosa , this court concluded that a state felony conviction for simple possession constitutedan “aggravated felony” for purposes of the sixteen-level enhancement set out i n § 2L1.2(b). We reached this conclusion by first noting that the application not es to § 2L1.2(b) specifically incorporated the definition of “aggravated felony” currently set out in 8 U.S.C. § 1101(a)(43). See Cabrera-Sosa , 81 F.3d at 999-1000. Section 1101(a)(43), in turn, defines “aggravated felony” as, inter alia , “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” See Cabrera-Sosa , 81 F.3d at 1000 (quoting 8 U.S.C. § 1101(a)(43)(B)). As to th e further incorporation of 18 U.S.C. § 924(c), this court indicated as follows:

Under section 924(c)(2), the relevant statute, “the term ‘drug trafficking crime’ means any felony punishable unde r the Controlled Substances Act (21 U.S.C. [§] 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 e t seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. § 1901 et seq.).” 18 U.S.C. § 924(c)(2). “For a drug offens e to come within this statute, and, in turn, to meet the definition of ‘aggravated felony,’ it must meet two criteria: first, the offe nse must be punishable under one of these three enumerated stat utes; and second, the offense must be a felony.” United States v. Forbes , 16 F.3d 1294, 1301 (1st Cir. 1994).-7- [Cabrera-Sosa’s] 1990 conviction meets both criteri a. First, possession of cocaine is clearly punishable under the Controlled Substances Act. See, e.g. , 21 U.S.C. § 844(a). Second, it is undisputed that Mr. Cabrera-Sosa’s 1990 conviction was a felony within the meaning of section 924(c)(2) even thoughit was a state conviction. The Controlled Substances Act defines a felony as “any Federal or State offense classified by applicable F ederal or State Law as a felony.” 21 U.S.C. § 802(13). Under New Yorklaw any criminal offense punishable by more than one year i s a felony. N.Y. Penal Law § 10.00(5) (McKinney 1995). Since Mr. Cabrera-Sosa’s sentence for his 1990 conviction was fifteen months , the offense was a felony under New York law. See Forbes , 16 F.3d at 1301 n.10; Jenkins v. INS, 32 F.3d 11, 14 (2d Cir. 1994).

Cabrera-Sosa , 81 F.3d at 1000 (footnote omitted). It is absolutely clear, and Castro-Rocha does not c ontest, that under the interpretation of the term “aggravated felony” set out in Cabrera-Sosa, he would be subject to the eight-level increase set out in t he new version of § 2L1.2(b)(1)(C). He asserts, however, that the amen dments to § 2L1.2, effective November 1, 2001, altered the definition “aggravate d felony” to exclude state simple possession felony convictions. The new vers ion of § 2L1.2 sets out a graduated scale of sentencing enhancements based onthe type of crime that preceded the previous deportation. It provides as follows: (1) Apply the Greatest: If the defendant previously was deported, or unlawf ully remained in the United States, after— (A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national-8- security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense committed for profit, increase by 16 levels; (B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels; (C) a conviction for an aggravated felony, increase by 8 levels; (D) a conviction for any other felony, increase by 4 levels; or (E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels. U.S.S.G. § 2L1.2(b)(1). The application notes to § 2L1.2 were also significantly altered to reflect the changes to the text of the g uideline. In particular, the application notes contain a new definition of “drug trafficking offense” which does not include simple possession crimes. See U.S.S.G. § 2L1.2, app. n.1(B)(iii). Nevertheless, the application notes c ontinue to define the term aggravated felony by reference to 8 U.S.C. § 1101(a )(43). See U.S.S.G. § 2.1.2, app. n.2 (“Application of Subsection (b)(1)(C). —For purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning give n that term in 8 U.S.C. § 1101(a)(43), without regard to the date of convicti on of the aggravated felony.”). Castro-Rocha argues that the changes to § 2L1.2 setout above remove simple possession convictions from the class of agg ravated felonies described in § 2L1.2(b)(1)(C). He notes that Cabrera-Sosarelied on the term “drug trafficking crime” from 18 U.S.C. § 924(c)(2) to co nclude that a state simple drug-9-

possession conviction constituted an “aggravated fe lony.” See 81 F.3d at 1000. He notes, however, that the new application notes a ccompanying the amendment of § 2L1.2 provide a definition of “drug traffickin g offense” that clearly excludes simple possession. In essence, Castro-Rocha conten ds that by singling out drug crimes that have a trafficking element for special treatment under the Guidelines, the Sentencing Commission demonstrated its intent t o treat simple possession convictions as ordinary felonies. More specificall y, Castro-Rocha contends that the definition of “drug trafficking offense” in the application notes to the 2001 version of § 2L1.2 also defines “drug trafficking c rime” for purposes of 8 U.S.C. § 1101(a)(43), obviating the need to rely on the mo re expansive definition of “drug trafficking crime” set out in 18 U.S.C. § 924 (c)(2).

In United States v. Soberanes , 318 F.3d 959 (9th Cir. 2003), the Ninth Circuit recently rejected arguments identical to th ose made by Castro-Rocha

.

Defendant’s interpretation of the amended guideline is unpersuasive for three reasons. First, applicationnote 1, defining “drug trafficking offense,” facially limits its rea ch. The application note says that it is to be used “[f]or purposes of subsection (b)(1).” It does not claim to have any force for the purpose s of 8 U.S.C. § 1101(a)(43)(B). Thus, application note 1’s definit ion applies to the use of “drug trafficking offense” only when that te rm appears verbatim within the text of the guideline itself, n amely, in U.S.S.G. § 2L1.2(b)(1)(A), (B), and (E). Second, a fundamental canon of statutory interpretation holds that, when there is an apparent conflict between a specific provision and a more general one, the more specific one gover ns, regardless of the priority of the provisions’ enactment. Cal. ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States , 215 F.3d 1005, 1013-10-

(9th Cir. 2000). Application note 1 states that it s definition of “drug trafficking offense” applies to allof subsection (b)(1). U.S.S.G. § 2L1.2, cmt. n.1. Under that application note, simp le possession is not a drug-trafficking offense. However, applicati on note 2 supplies a special rule that applies only with respect to subsection (b)(1)(C) , namely, that the definition of “aggravated felony” is to be determined by reference to 8 U.S.C. § 1101(a)(43). U.S.S.G. § 2L1.2, cmt. n.2. Under that statute, simple possession can be an agg ravated felony. [ United States v. Ibarra-Galindo , 206 F.3d 1337, 1339 (9th Cir. 2000)]. Because the application note requiring cou rts to look to 8 U.S.C. § 1101(a)(43) when applying U.S.S.G. § 2L1.2 (b)(1)(C) is more specific than the one mandating a general rule for all of subsection (b)(1), the former takes precedence overthe latter. Finally, application note 2 states that “‘aggravate d felony’ has the meaning given that term in 8 U.S.C. § 1101(a)(4 3).” That statutory provision defines an “aggravated felony” as a “drug trafficking crime ( as defined in section 924(c) of Title 18 ).” (Emphasis added.) Section 1101(a)(43) does notstate that an aggravated felony is a “drug trafficking offense (a s defined in application note 1 of U.S.S.G. § 2L1.2).” To accep t Defendant’s interpretation we would have to ignore the text of the statute, which requires us to define “drug trafficking crime” thro ugh reference to § 924(c) and the statutes it cites.

Soberanes , 318 F.3d at 963-64 (footnotes omitted); see also United States v.

Caicedo-Cuero , 312 F.3d 697, 706-11 (5th Cir. 2002) (same). We have nothing to add to the Ninth Circuit’s conci se analysis and hereby adopt it as our own. The decision to carry forward the term “aggravated felony,” while retaining the provision of the application no tes defining that key term by reference to 8 U.S.C. § 1101(a)(43), makes clear th e Sentencing Commission intended that state felony convictions for simple p ossession qualify for the eight-2 Castro-Rocha filed supplemental authority pursuant to Fed. R. App. P.

28(j), noting the Sentencing Commission has propose d an amendment to § 2L1.2(b)(1)(C) that would remove simple possessio n offenses from the definition of “aggravated felony.” See Sentencing Guidelines for United States Courts, 67 Fed. Reg. 77,532-01, 77,539-40 (proposedDec. 18, 2002). In concluding that the proposed amendment did not alte r its view of § 2L1.2(b)(1)(C), the Ninth Circuit concluded as foll ows:

Whatever the ultimate fate of the proposed amendmen t, this argument is unavailing. The Supreme Court has cauti oned against the use of later legislative history in understanding a n earlier-enacted statute. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc. , 447 U.S. 102, 117-18 (1980). As the Court explained, “e ven when it would otherwise be useful, subsequent legislative h istory will rarely override a reasonable interpretation of a statute t hat can be gleaned from its language and legislative history prior to its enactment.” Id. at 118 n.13. Here, the text of the guideline as it existed when Defendant was sentenced, along with our cases, provide a reas onable and coherent interpretation. This is not the rare case in which later-suggested changes to the text illuminate its pre-existing meaning. Instead, the proposed changes likely refl ect the Sentencing Commission's view that the penalties prescribed by the existing guideline may be too harsh. . . . In other words, the proposed amendments do not nece ssarily reveal the Sentencing Commission's intent when it d rafted the 2001 amendments. Rather, the proposed change is just th at—a change. For now, drug-possession offenses still can be aggr avated felonies. United States v. Soberanes , 318 F.3d 959, 964-65 (9th Cir. 2003). Like the N inth Circuit, we conclude that the proposed amendments t o § 2L1.2(b)(1)(C) do not speak at all to the proper interpretation of the cu rrent version of the guideline. -11- level enhancement set out in § 2L1.2(b)(1)(C). 2 For that reason, the rule of lenity has no application in this case. See Muscarello v. United States , 524 U.S. 125, 138 (1998) (holding that the rule of lenity “applie s only if, after seizing everything from which aid can be derived, . . . we can make no more than a guess-12-

as to what Congress intended” (quotations omitted)) . Castro-Rocha’s prior Texas conviction for possession of cocaine is an “aggravated felony” within the meaning of U.S.S.G. § 2L1.2(b)(1)(C). Accordingly, the jud gment of the United States

District Court for the District of Colorado is here by AFFIRMED

.