UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-40499

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

REYMUNDO REYNA-ESPINOSA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

July 11, 1997

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.

The question before us is whether a conviction for unlawful

possession of a firearm by a n alien under 18 U.S.C. § 922(g)(5)

constitutes an “aggravated felony” for purposes of increasing the

defen dant’s offense level by 16 levels pursuant to U.S.S.G. §

2L1.2(b)(2). This issue is one of first impression for all

circuits.

We hold that a conviction under § 922(g)(5) is not an

aggravated felony under § 2L1.2(b)(2); accordingly, we reverse the1 Reentry of removed alien

(a) Subject to subsection (b), any alien who--

(1) has been denied admission, excluded, deported, or removed or has

departed the United States while an order of exclusion, deportation, or

removal is outstanding, and thereafter (2) enters, attempts to enter, or

is at any time found in, the United States

. . . shall be fined under

title 18, United States Code, or imprisoned not more than 2 years or both.

(b) Notwithstanding sub section (a), in the case of any alien described in

such subsection--

(1) whose removal was subsequent to a conviction for commission of three

or more misdemeanors involving drugs, crimes against the person, or both,

or a felony (other than an aggravated felony), such alien shall be fined

under title 18, United States Code, imprisoned not more than 10 years, or

both;

(2) whose removal was subsequent to a conviction fo r commission of an

aggravated felony, such alien shall be fined under such title, imprisoned

not more than 20 years, or both[.]

8 U.S.C. § 1326 (Supp. 1997)(in pertinent part).

2 district court and remand for resentencing.

FACTS and PROCEDURAL HISTORY

Reyna-Espinosa was arrested in November 1994 while attempting

to transport a firearm into Mexico. Although handcuffed, the

appellant managed to grab a United States Customs Service shotgun

and then attempted to carjack a government vehicle. Reyna-Espinosa

pleaded guilty to being an illegal alien in unlawful possession of

a firearm, in violation o f 18 U.S.C. § 922(g)(5). The appellant

was sentenced to a term of imprisonment of twelve months and one

day, to be fo llowed by a three-year term of supervision. In

October 1995, the appellant was deported to Mexico.

In January 1996, Reyna-Espinosa was arrested by the Border

Patrol when found walking along U.S. Highway 83 in Rio Grand City.

The appellant was indicted for being found in the United States

unlawfully after arrest and deportation, in violation of 8 U.S.C.

§ 1326(a) and (b)(2) 1

. Reyna-Espinosa pleaded guilty pursuant to3

a plea agreement which provided that the government would recommend

a two-level adjustment for acceptance of responsibility and a

sentence at the low end of the applicable guideline range.

The Presentence Investigation Report (“PSR”) recommended that

the appellant’s prior conviction for being an illegal alien in

possession of a firearm under 18 U.S.C. § 922(g)(5) be considered

an aggravated felony. Accordingly, the PSR increased ReynaEspinosa’s base offense level of 8 by 16 levels pursuant to

U.S.S.G. § 2L1.2(b)(2). The PSR also recommended a three-level

decrease for acceptance of respon sibility. Based on a total

o ffense level of 21 and a criminal history category of III , the

applicable sentencing range was calculated at 46 to 57 months.

Reyna-Espinosa objected to the 16-level enhancement, arguing

that the prior firearm conviction was not an aggravated felony

under the Guidelines. Reyna-Espinosa argued that the upward

adjustment should be four levels, not 16; thus, his sentencing

range should be 10 to 16 months.

In an addendum to the PSR, the probation department responded

that Application note 7 of the Commentary to § 2L1.2 specifically

refers to 18 U.S.C. § 1101(a)(43), which expressly defines a

violation of § 922(g)(5 ) as an aggravated felony under the

Immigration and Nationality Act (“INA”).

The district court overruled Reyna-Espinosa’s objection,

adopting the PSR in full. The court sentenced the appellant to 46

months of imprisonment, to be followed by a three-year term of

supervised release.4 STANDARD OF REVIEW

We review a claim that the district court erred in applying

U.S.S.G. § 2L1.2(b)(2) instead of § 2L1.2(b)(1) de novo; we review

the trial court’s factual finding s under a clearly erroneous

standard. U

nited States v. Rodriguez-Guzman

, 56 F.3d 18 (5th Cir.

1995).

DISCUSSION

Reyna-Espinosa appeals his sentence on the basis that his

conviction for being an alien in unlawful possession of a firearm

is not an aggravated felony for purposes of U.S.S.G. § 2L1.2. The

appellant claims that the district court erred in enhancing his

base offense level by 16 levels instead of four.

Section 2L1.2(a) of the Guidelines provides for a base offense

level of 8 for an alien who unlawfully enters or remains in the

United States following arrest and deportation, in violation of 8

U.S.C. §§ 1326(a) and 1326(b)(2). Subsection 2L1.2(b) provides for

an enhancement of the base offense level if the alien was

previously deported after a conviction for a felony or aggravated

felony:

(1) If the defendant previously was deported after a

conviction for a felony, other th an a felony involving

violation of the immigration laws, increase by 4 levels.

(2) If the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels.

U.S.S.G. § 2L1.2(b) (1995) (emphasis in original). The application

note defining “aggravated felony” provides:

“Ag g ravated felony,” as used in subsection (b)(2), means

murder; any illicit trafficking in any controlled substance

(as defined in 21 U.S.C. § 802), including any drug5

trafficking crime as defined in 18 U.S.C. § 924 (c)(2); any

illicit trafficking in any firearms or destructive devices as

defined in 18 U.S.C. § 921; any offense described in 18 U.S.C.

§ 1956 (relating to laundering of monetary instruments); any

crime of violence (as defined in 18 U.S.C. § 16, not including

a purely political offense) for which the term of imprisonment

imposed (regardless of any suspension of such imprisonment) is

at least five years; or any attempt or conspiracy to commit

any such act. The term “aggravated felony” applies to

offenses described in the previous sentence w hether in

violation of federal or state law and also applies to offenses

described in the previous sentence in violation of foreign law

for which the term of impr isonment was completed within the

previous 15 years. See 8 U.S.C. § 1101(a)(43).

U.S.S.G. § 2L1.2, comment. (n. 7)(1995) (emphasis added). While

the definition in application note 7 does not expressly state that

a convic tion under § 922(g)(5) is an aggravated felony, Section

1101(a)(43) of the INA expressly defines a violation of § 922(g)(5)

as an aggravated felony. The crux of this appeal, therefore, is

whether the “ See” cite to Section 1101(a)(43) actually incorporates

the definitions contained in that section to the enhancement

provision in U.S.S.G. § 2L1.2(b)(2), or whether it is merely a

reference as to the source of the enumerated aggravated felonies in

not e 7 to § 2L1.2(b). The circuits that have addressed this

precise issue have split.

The Eighth Circuit has held that Section 1101(a)(43) has been

incorporated in full. U nited States v. Maul-Valverde

, 10 F.3d 544,

545 (8th Cir. 1993) (“Both [8 U.S.C. § 1326(b)] and [U.S.S.G. §

2L1.2(b)(2) ] use the definition of aggravated felony found in 8

U.S.C. § 1101(a)(43).”).

The Ninth and Seventh Circuits have determined that the

Sentencing Commission intended to apply the 16-level enhancement

only to specifically listed felonies. In U nited States v. Rios-6

Favela,

--- F.3d ---, 1997 WL 345959 (9th Cir. June 25, 1997), the

Ninth Circuit rejected the Eighth Circuit’s analysis:

In defining which aggravated felonies warranted the sixteenlevel adjustment, the Sentencing Commission considered the

statutory definition of “aggravated felony” provided in 8

U.S.C. § 1101(a)(43), as evidenced by its direction in note 7

to “see” the statute. Although at least one other circuit has

held that the Sentencin g Commission adopted in full the

statutory definition of aggravated felony provided in 8 U.S.C.

§ 1101(a)(43), see Maul-Verde, 10 F.3d at 545

. . . , we disagree. We conclude that the Commission formulated a nearly

identical yet nonetheless distinc t list of offenses that

qualify as aggravated felonies for sentencing purposes.

Id. at *4.

The Seventh Circuit has also held that the Senten cing

Commission did not intend for 8 U.S.C. § 1326 and U.S.S.G. § 2L1.2

to operate symmetrically. United States v. Munoz-Cerna , 47 F.3d

207, 212 (7th Cir. 1995) (“[W]e believe it is quite clear that no

symmetry was intended between the aggravated felony provisions of

[the INA] and the aggravated felony provisions of the guideline.”).

Reyna-Espinosa does not dispute that a conviction for being an

alien in possession of a weapon is an aggravated felony under the

INA:

Mr. Reyna’s conviction under 18 U.S.C. § 922(g)(5) very

well may make him ineligible for asylum or relief from

depo rtation and exclusion from the United States; the INA

expresses national policy concerning an alien’s privilege to

enter or reside in the United States.

Appellant’s Brief at 11. The appellant argues, however, that a

prior conviction for being an alien in possession of a weapon is

not an aggravated felony for purposes of enhancement under the

Guidelines.

The government argues that the “ See” cite to Section2 The only offense from the definition of aggravated felony in application

note 7 that relates to firearms involves trafficking in firearms in violation of

18 U.S.C. § 921. The government does not argue that the defendant’s sentence was

enhanced under this definition, and the district court did not base its

enhancement on this definition.

7 1101(a)(43) implies that Congress did not intend to limit the scope

of the definition of “aggrava ted felony” for purposes of Section

2L1.2(b)(2). Reyna-Espinosa claims that the “ S ee” cite is not a

term of incorporation. The appellant argues that the Sentencing

Commission did not use inclusive language in Note 7; instead it

employed specific and exclusive language, stating that aggravated

felony “means ,” followed by a full paragraph of definition of

crimes 2 derived from only 5 of 21 paragraphs of § 1101(a)(43).

Reyna-Espinosa claims that the Sentencing Commi ssion could have

easily directly incorporated all felonies contained in 1101(a) and

did not.

Reyna-Espinosa also argues that the definition of the signal

“ See” does not support the government’s argument:

The citation signal “See” used by the Sentencing

Commission is not a term of incorporation. According to the

most recent edition of The Bluebook

, “ See ”, is used to show

that the “[c]ited authority clearly supports the

proposition.[”] Harvard L. R ev. Ass’n, T he Bluebook

- A

Uniform System of Citation § 1.2 (15th ed. 1991). “ S ee”

merely is an introductory signal indicating support. Id.

Appellant’s Brief at 11.

We note that t he first version of § 2L1.2 provided for a 4-

level enhancement for a prior felony, without specifically

providing for aggravated felonies. U.S.S.G. § 2L1.2 (eff. Nov. 1,

1989). The commentary to that version of § 2L1.2 suggested that an

upward departure may be warranted if the prior conviction was an8

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

. . . or for

any other violent felony.” U.S.S.G. § 2L1.2, comment. (n.3) (eff.

Nov. 1, 1989). In 1991, § 2L1.2 was amended to include the current

section and its application note. Congress amended 8 U.S.C. §

1101(a)(43) i n 1994, expanding the definition of “aggravated

felony.” Pub.L.No. 103-416, 108 Stat. 4320-22 (1994). The

Guidelines were not correspondingly amended; thus, the Guidelines’

list of aggravated felonies mirrors that of the pre-1994 version of

8 U.S.C. § 1101(a)(43).

We agree with the Ninth and Seventh Circuits that the

definition of “aggravated felony” for purposes of § 2L1.2(b)(2) is

limited to the felonies expressl y listed in application note 7.

Section 1101(a)(43) is not incorporated w holly by the reference

signal “ see .” Accordingly, Reyna-Espinosa’s prior § 922(g)(5)

conviction is not an aggravated felony under § 2L1.2(b)(2).

Alternatively, the governme nt argues, as it did at the

appellant’s sentencing, that the underlying facts of ReynaEspinosa’s offense under § 922(g)(5) support an enhancement for a

prior aggravated felony conviction. This argument is without

merit. This circuit has rejected the argument that a sentencing

court should look to the underlying facts to determine whether a

prior conviction was a crime of violence and, thus, an aggravated

felony for purposes of § 2L1.2. U nited States v. Velazquez-Overa

,

100 F.3d 418, 421 (5th Cir. 1996)(“A sentencing court need only

consider the fact that [the defen dant] was convicted and the

inherent nature of the offense.”), cert. denied

, -- U.S. --, 1179

S.Ct. 1283 (1997).

CONCLUSION

We conclude that the reference to 18 U.S.C. § 1101(a)(43) in

the Commentary to U.S.S.G. § 2L1.2 does not constitute a complete

incorporation of that statute. Instead, we must look to the

felonies expressly enumerated in the Commentary for the definition

of aggravated felony under U.S.S.G. § 2L1.2. Consequently, a

conviction under 18 U.S.C. § 922(g)(5) is not an aggravated felony

for purposes of increasing a defe ndant’s offense level under

U.S.S.G. § 2L1.2(b). Accordingly, Reyna-Espinosa’s sentence is

VACATED and the case is REMANDED to the district court for

resentencing.