                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       August 13, 2003

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 02-41095
                              Summary Calendar



     UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

            versus

     JOSE ZAVALA-MONTOYA,

                                               Defendant-Appellant.




             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. B-02-CR-134-1



Before GARWOOD, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose    Zavala-Montoya    (Zavala)   pleaded   guilty     to   illegally

reentering     the   United   States   after   having   been    deported,       a

violation of 8 U.S.C. § 1326, and was sentenced to forty-six

months’ imprisonment and three years’ supervised release.               He now

appeals his conviction and sentence.

     Zavala argues that the district court erred in imposing an



     *
      Pursuan t 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opinion should not be published and is not precedent except under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.
offense    level       increase      of       sixteen,     under     U.S.S.G.     §

2L1.2(b)(1)(A)(ii)      (2001),     based      on   his   prior    conviction   for

burglary of a habitation, for which he had been sentenced to

probation.       Acknowledging that the sixteen-level increase was

warranted under the literal terms of the guideline, Zavala now

nonetheless      suggests   that,     in      amending     section    2L1.2,    the

Sentencing Commission could not have intended that a prior offense

that did not qualify as an “aggravated felony” under 8 U.S.C. §

1101(a)(43) – a felony for which the defendant had been sentenced

to one year or more in prison – could nevertheless result in a full

sixteen-level increase.

     Interpretation of the Sentencing Guidelines is subject to

ordinary rules of statutory construction, and if the guideline’s

language is unambiguous, our inquiry begins and ends with an

analysis of the plain meaning of that language.               See United States

v. Carbajal, 290 F.3d 277, 283 (5th Cir.), cert. denied, 123 S.Ct.

34 (2002).       The only exception to this rule is when a clear

legislative intent to the contrary is shown, an exception that

applies   only    in   “rare   and    exceptional         circumstances.”       See

Ardestani v. INS, 502 U.S. 129, 134-36 (1991).

     Zavala concedes, however, that he did not object to his

sentence in the district court on the grounds that he now raises on




                                          2
appeal and that our review is accordingly for plain error only.1

See United States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003).

An error is plain only “when it is clear or obvious and it affects

the   defendant's   substantial      rights.”   Id.      Even    in    such   a

situation, we will exercise discretion to reverse such error only

where it implicates the “fairness, integrity, or public reputation

of judicial proceedings.”      Id. (quoting United States v. Cotton,

122 S.Ct. 1781 (2002)).

      We have held that where a district court incorrectly applies

the Guidelines, such error, in many cases, seriously affects the

fairness, integrity, or public reputation of judicial proceedings.

United States v. Alarcon, 261 F.3d 416, 424 (5th Cir. 2001). The

initial question is whether the district court committed a clear or

obvious error in failing, in the absence of any invitation from the

defendant, to look beyond the plain language of section 2L1.2 to

conclude   that   the   Sentencing    Commission's    intent    in    amending

section 2L1.2 dictated that Zavala receive only a four-level

enhancement.



      1
          Zavala did initially object to the sixteen-level
enhancement, but did so on the grounds that his prior burglary
conviction was not an aggravated felony since he was sentenced only
to probation. See United States v. Banda-Zamora, 178 F.3d 728, 730
(5th Cir. 1999) (“[W]hen a court does not order a period of
incarceration and then suspend it, but instead imposes probation
directly, the conviction is not an 'aggravated felony.'”).
Moreover, Zavala later withdrew this objection, conceding that it
would have no effect on the statutory maximum sentence to which he
would be exposed. Compare 8 U.S.C. § 1326(b)(1) with § 1326(b)(2).

                                      3
      Zavala relies on two earlier drafts of what would become the

current       guideline      section    2L1.2,      as    well    as     on   Sentencing

Commission materials issued in connection with those drafts, to

support his interpretation of section 2L1.2.                     The materials Zavala

cites clearly establish that the 2001 amendments to section 2L1.2

were motivated by a concern that the prior version of section

2L1.2—which provided for only two categories of prior offenses and

either    a    four-    or    a    sixteen-level         enhancement—produced        some

sentences disproportionate to the seriousness of the particular

underlying       aggravated        felony   convictions.           Accordingly,       the

Commission amended section 2L1.2 in 2001 to provide for five

categories       of    prior       offenses       with     corresponding       sentence

enhancements ranging from four to sixteen levels.                        See U.S.S.G. §

2L1.2 (2001).          Zavala also correctly notes that in organizing

offenses into difference categories, the Commission sought to

provide for increased punishments only for what it considered to be

the most serious felonies.             Thus, the current version of section

2L1.2 still authorizes a sixteen-level enhancement, but does so

only for certain predicate felony offenses, including, among other

things, a felony that is a “crime of violence,” and states “‘Crime

of violence –‘”

     “(I) means an offense under federal, state, or local law
     that has as an element the use, attempted use, or
     threatened use of physical force against the person of
     another; and

     (II)        includes         murder,       manslaughter,          kidnapping,


                                            4
     aggravated assault, forcible sex offenses (including
     sexual abuse of a minor), robbery, arson, extortion,
     extortionate extension of credit, and burglary of a
     dwelling.” U.S.S.G. § 2L1.2, Application Note 1.

     In contrast to the above-quoted final version of section

2L1.2, the first proposed amendment to section 2L1.2, did not

attempt   to   provide      for   enhancements      based    on     specific   prior

offenses, but instead provided for enhancements of varying severity

based, in part, on the length of the term of imprisonment a

defendant actually served for a prior offense.                        See Proposed

Amendment: Unlawful Entering, 66 Fed. Reg. 7962, 8008–09 (Jan. 26,

2001).    Thus, under the first draft of 2L1.2, a sixteen-level

enhancement     was    only    available      where    the    defendant's      prior

conviction     was    an   aggravated     felony,     and    “(I)    the   defendant

actually served a period of imprisonment of at least ten years for

such conviction;” or “(II) the aggravated felony involved death,

serious bodily injury, the discharge or other use of a firearm or

dangerous weapon, or a serious drug trafficking offense.”                         Id.

Relying on this first proposed draft, Zavala argues that the

Commission clearly intended to measure the seriousness of a prior

conviction in terms of prison time served, and that it could not,

therefore,     have   intended     that   a   sixteen-level         enhancement   be

imposed for his prior burglary offense, even where that offense

clearly falls within the literal definition of a crime of violence.

     The second draft version of 2L1.2 also lends some support to

Zavala's argument.         Although the second proposed version of 2L1.2,

                                          5
abandoned the previous draft's primary focus on the length of

incarceration,       it     nevertheless        emphasized       actual      terms    of

imprisonment     imposed         for   a   prior      conviction,        imposing     an

enhancement, in certain cases, only where the defendant had been

sentenced to thirteen months' imprisonment for a prior offense.

Thus, under the second proposed draft of section 2L1.2, a sixteen-

level enhancement would only have been available for, among other

things,

     “(A) a conviction for (I) a serious drug offense [for
     which the sentence imposed was not less than 13 months];
     (ii) a crime of violence [for which the sentence imposed
     was not less than 13 months]; (iii) a felony that is a
     child pornography offense, or (iv) a felony that is a
     firearms offense . . . .”      United States Sentencing
     Commission, Revised Proposed Amendment: Unlawfully
     Entering (Mar. 29, 2001).

Zavala thus correctly notes that under either of the first two

proposed versions of section 2L1.2, his burglary offense would not

have subjected him to a sixteen-level enhancement, and argues that

the same burglary offense, therefore, should also not subject him

to such an enhancement under the final version.

     It is not altogether clear, however, that the Sentencing

Commission did not also intend for a sixteen-level enhancement to

be applied for certain offenses even where a prior conviction for

those     offenses    did       not    result    in   a   significant         term    of

incarceration.       Thus, in connection with the first proposed draft

discussed    above,       the    Commission      noted    that     a    sixteen-level

enhancement    “would       be    triggered     not    only   by       the   period   of


                                           6
imprisonment actually served but also by all aggravated felonies

involving death, serious bodily injury, the discharge or other use

of a firearm or dangerous weapon, or a serious drug trafficking

offense, regardless of the period of imprisonment actually served

by the defendant.”   Proposed Amendment: Unlawful Entering, 66 Fed.

Reg. 7962, 8008–09 (Jan. 26, 2001) (emphasis added).     Indeed, we

have previously noted, in interpreting section 2L1.2, that the

Commission clearly intended, in singling out certain crimes to

result in substantial enhancement, to identify and to punish those

offenses that are “inherently violent or forceful, or inherently

risk violence and the use of force.”   United States v. Rayo-Valdez,

302 F.3d 314, 317 (5th Cir. 2002).2      Burglary of a dwelling is

certainly such a crime.    See United States v. Flores, 875 F.2d

1110, 1113 (5th Cir. 1989) (“Whenever a private residence is broken

into, there is always a substantial risk that force will be

used.”).   In addition, the Commission's final changes to section

2L1.2 undermine Zavala's argument that the Commission intended to

limit “crimes of violence” to only prior offenses that resulted in

substantial terms of imprisonment, and that its failure to do so

expressly was merely inadvertent.    The Commission retained, in the


     2
        See also United States v. Alvarenga-Silva, 324 F.3d 884,
887 (7th Cir. 2003) (“The Sentencing Commission likely enumerated
certain serious offenses (like sexual abuse of a minor and burglary
of a dwelling), rather than resting on a general definition [of
“crime of violence”], to ensure that those particular offenses
would be treated as crimes of violence regardless of variations in
state statutory elements.”).

                                 7
final version of section 2L1.2, such a limitation on the category

of serious drug offenses justifying a sixteen-level enhancement,

while a similar requirement, present in the second proposed draft

of 2L1.2, is noticeably absent in the final version of section

2L1.2 with respect to crimes of violence.            Compare U.S.S.G. §

2L1.2(b)(1)(A)(i) (2001), with § 2L1.2(b)(1)(A)(ii).

     Despite such conflicting evidence of the Commission's intent,

we need not ultimately resolve whether Zavala's interpretation of

the 2001 amendments to section 2L1.2 is the correct one.          Indeed,

because the evidence of the Commission's intent behind the 2001

amendment is not unequivocal, we cannot say that the district court

committed clear error by refusing to look to the Commission's

intent and instead adhering to a literal application of section

2L1.2 to Zavala's offense.   See United States v. Garcia-Hernandez,

No. 02-41580 (5th Cir. June 4, 2003) (unpublished); Alvarenga-

Silva, 324 F.3d at 888 (refusing to rely on interpretations of the

Commission's intent or to look beyond the plain language of section

2L1.2); see also United States v. Diaz-Diaz, 327 F.3d 410, 415 (5th

Cir. 2003) (declining to find clear error in the district court's

application   of   an   ambiguous       provision   of   the   Sentencing

Guidelines); United States v. Hernandez-Gonzales, 318 F.3d 1299,

1302 (11th Cir. 2003) (declining to overturn, on plain error

review, a district court's interpretation of U.S.S.G. § 2L1.2, and

noting instead that “[a]n error cannot be plain if such error is


                                    8
not obvious or clear under current law.”).

       Zavala      also    contends    that      8   U.S.C.      §   1326(b)    is

unconstitutional on its face under Apprendi v. New Jersey, 530 U.S.

466 (2000), in that the felony “element” of the offense need no be

submitted     to   the    factfinder   for     proof.      As   Zavala    concedes,

however, this contention is foreclosed by the caselaw of this court

and by Apprendi.          See United States v. Dabeit, 231 F.3d 979, 984

(5th   Cir.     2000)     (noting   that   the   Supreme    Court    in    Apprendi

expressly declined to overrule Almendarez-Torres v. United States,

523 U.S. 224 (1998)).        Zavala raises this issue only to preserve it

for possible review by the Supreme Court.

       For the foregoing reasons, Zavala’s conviction and sentenced

are

                                    AFFIRMED.




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