                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-2557
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                            Leopoldo Figueroa-Alvarez

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Northern District of Iowa - Sioux City
                                 ____________

                             Submitted: April 17, 2015
                               Filed: August 4, 2015
                                  ____________

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
                              ____________

LOKEN, Circuit Judge.

       Leopoldo Figueroa-Alvarez, a citizen of Mexico, pleaded guilty to illegally
reentering this country following removal in violation of 8 U.S.C. § 1326(a). A
violation of § 1326(a) is punishable by “not more than 2 years” imprisonment. But
§ 1326(b) authorizes imprisonment “not more than 10 years” if a defendant’s prior
removal “was subsequent to a conviction for commission of . . . a felony,” and “not
more than 20 years” if removal was subsequent “to a conviction for commission of
an aggravated felony.” At the plea hearing, Figueroa-Alvarez admitted a pre-removal
Iowa conviction for committing third-degree attempted burglary, an “aggravated
misdemeanor” punishable by up to two years in prison under state law. See Iowa
Code §§ 713.6B, 903.1(2). He did not admit he committed a “felony.”

       At sentencing, the district court determined that Figueroa-Alvarez’s advisory
guidelines sentencing range was 46-57 months in prison, applying an increase in
U.S.S.G. § 2L1.2(b)(1) for removal following a “felony” conviction because this
Guidelines provision defines “felony” as “any federal, state, or local offense
punishable by imprisonment for a term exceeding one year.” § 2L1.2, comment.
(n.2). Figueroa-Alvarez argued that his statutory maximum sentence was limited to
two years under 8 U.S.C. § 1326(a) because an Iowa third-degree attempted burglary
conviction was not a “felony” under § 1326(b)(1). The government argued the
burglary conviction was a felony and therefore Figueroa-Alvarez was subject to a 10-
year statutory maximum sentence. The district court1 agreed with the government’s
interpretation of § 1326(b)(1), granted a downward departure and variance, and
sentenced Figueroa-Alvarez to 36 months in prison. He appeals the sentence, arguing
the two-year statutory maximum applies because § 1326(b) does not define felony,
the term is ambiguous, and we should either conclude that Congress intended to defer
to the applicable definition under state law, or apply the rule of lenity. Reviewing
this issue of statutory construction de novo, we affirm.

       We addressed this issue in United States v. Vasquez-Gutierrez, 478 F. App’x
336 (8th Cir.), cert. denied, 133 S. Ct. 363 (2012). The issue on appeal in that case
was the determination that Vasquez-Gutierrez’s prior Iowa conviction for assault with
intent to commit sexual abuse causing no bodily injury was an “aggravated felony”
under § 1326(b)(2). The offense was classified by the State of Iowa as an aggravated


      1
      The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.

                                         -2-
misdemeanor but carried a maximum sentence of two years in prison. Because
Vasquez-Gutierrez’s federal sentence was more than two but less than ten years in
prison, we held that any error in the aggravated felony determination was harmless
because the plain meaning of “felony” in § 1326(b)(1) is a crime punishable by more
than one year in prison. In support, we cited Carachuri-Rosendo v. Holder, 560 U.S.
563, 574 (2010) (“A ‘felony,’ we have come to understand, is a ‘serious crime usually
punishable by imprisonment for more than one year or by death,” quoting Black’s
Law Dictionary 694 (9th ed. 2009)); and three federal statutes consistent with this
definition, 18 U.S.C. § 3559(a) (classifying offenses for sentencing), 8 U.S.C.
§ 1101(a)(43)(F) & (G) (enumerating certain aggravated felonies), and 21 U.S.C.
§ 802(44) (defining “felony drug offense”). 478 F. App’x at 338 & n.3. Like the
prior conviction in Vasquez-Gutierrez, Figueroa-Alvarez’s third-degree attempted
burglary offense carried a statutory maximum sentence of two years in prison.

       The Tenth Circuit and the Fourth Circuit have also construed the word “felony”
in § 1326(b)(1) as meaning any state or federal offense punishable by a maximum
term of more than one year in prison. See United States v. Cordova-Arevalo, 456
F.3d 1229, 1232-34 (10th Cir.), cert. denied, 549 U.S. 1088 (2006); accord United
States v. Savillon-Matute, 636 F.3d 119, 122 n.5 (4th Cir.), cert. denied, 132 S. Ct.
454 (2011). Figueroa-Alvarez cites no authority adopting or advocating his contrary
interpretation of § 1326(b)(1). However, he accurately notes that Congress departed
from this definition of “felony” in 21 U.S.C. § 802(13), which defines “felony” for
purposes of the Drug Abuse Prevention and Control Act as “any Federal or State
offense classified by applicable Federal or State law as a felony” (emphasis added).

       Although our unpublished decision in Vasquez-Gutierrez is not controlling
authority, see 8th Cir. Rule 32.1A, we conclude that Vasquez-Gutierrez and the Tenth
and Fourth Circuit decisions are persuasive. The first reason is historical. From 1909
until the Sentencing Reform Act was enacted in 1984, Pub. L. 98-473 (1984), the
United States Code provided that any federal offense punishable by death or a prison

                                         -3-
term exceeding one year “is a felony,” whereas any other offense is a misdemeanor.
18 U.S.C. § 1, Act of June 25, 1948, c. 645, 62 Stat. 684; see § 335 of the Criminal
Code, c. 321, 35 Stat. 1088, 1152 (1909); Act of Dec. 16, 1930, c. 15, 46 Stat. 1029
(adopting a six-month petty offense subcategory of misdemeanors); Duke v. United
States, 301 U.S. 492, 494 (1937). The statute broadly defining “felony” was repealed
in the Sentencing Reform Act and replaced by 18 U.S.C. § 3559(a), a statute that
classifies offenses for sentencing purposes. Each of the five felony classifications in
§ 3559(a)(1)-(5) has a maximum prison term of more than one year. Thus, there was
good reason for the Supreme Court to observe in Carachuri-Rosendo that “we have
come to understand” that the term “felony” means a serious crime punishable by more
than one year in prison. Congress itself is the source of that understanding. The word
is not ambiguous as a matter of federal law, as Figueroa-Alvarez contends; the
question is whether Congress in § 1326(b)(1) intended this federal definition to apply.

       Second, § 1326(b) is a sentencing provision, enacted to increase the maximum
punishment for aliens who illegally reenter after removal following conviction for a
serious crime. It is reasonable to conclude that Congress intended the word “felony”
to have the same meaning in § 1326(b)(1) as in § 3559(a), a sentencing statute which
defines the five classes of federal felonies in terms of the maximum punishment for
an offense. Allowing state classification of crimes to dictate the maximum federal
punishment for illegal reentry offenses would undermine the interest of nationwide
uniformity in federal sentencing and in administration of the federal immigration
laws. In our view, it is telling that, in construing one subpart of the Immigration and
Nationality Act’s complex definition of “aggravated felony,” the Supreme Court
declined a “reading [that] would render the law of alien removal and the law of
sentencing for illegal entry into the country dependent on varying state criminal
classifications.” Lopez v. Gonzales, 549 U.S. 47, 58 (2006) (citations omitted).2


      2
      Lopez and Carachuri-Rosendo involved interpreting one subpart of the term
“aggravated felony,” defined in a “maze of statutory cross-references” in 8 U.S.C.

                                         -4-
Textually, the argument is even stronger for adopting the federal definition in this
case. In Lopez, the statute required that the alien be “convicted of an aggravated
felony,” 8 U.S.C. § 1227(a)(2)(A)(iii), which “suggests that the jurisdiction issuing
the conviction determines whether the offense is a felony,” id. at 63 (Thomas, J.,
dissenting); § 1326(b)(1) requires “conviction for commission of . . . a felony,” which
does not.

       Though Iowa classified third-degree attempted burglary as an aggravated
misdemeanor, it was punishable by up to two years in prison. We therefore hold that
it was a felony, as that term is used in 8 U.S.C. § 1326(b)(1). We reject Figueroa-
Alvarez’s contention that we should apply the rule of lenity; deciding whether
Congress intended the longstanding federal definition to apply to the term “felony”
in § 1326(b)(1) does not involve “a grievous ambiguity or uncertainty.” Muscarello
v. United States, 524 U.S. 125, 139 (1998); see Donnell v. United States, 765 F.3d
817, 820 (8th Cir. 2014), cert. denied, 135 S. Ct. 1519 (2015).

      The judgment of the district court is affirmed.
                    ______________________________




§ 1101(a)(43). 560 U.S. at 567. The Court noted that this term “is unique to Title 8,
which covers immigration matters,” id. at 574, unlike the term “felony,” which has
had an accepted meaning under federal law for more than a century.

                                         -5-
