     Case: 11-20091     Document: 00511851471         Page: 1     Date Filed: 05/10/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 10, 2012

                                       No. 11-20091                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JOSE MANUEL LUCIO CHAVEZ, also known as Jose Lucio, also known as
Jose Manuel Lucio-Chavez, also known as Jose Manuel Lucio,


                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                           U.S.D.C. No. 4:10-cr-00455-1


Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        The defendant, Jose Manuel Lucio Chavez, challenges the district court’s
application of an enhancement to his sentence, pursuant to U.S.S.G.
§ 2L1.2(b)(1)(B).1 The enhancement was imposed on the ground that Chavez had


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
        Citations are to the 2010 Sentencing Guidelines, the version in effect when Chavez
was sentenced, and which was used by the district court in sentencing him. See U.S.S.G.
§ 1B1.11(a).
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                                       No. 11-20091

previously been deported after “a conviction for a felony drug trafficking offense
for which the sentence imposed was 13 months or less.” Chavez’s sentence of
incarceration for his prior Texas drug trafficking conviction had been suspended,
and he was placed on community supervision.                   However, his community
supervision was subsequently modified to require him to serve up to a year in
a residential substance abuse facility run by the Texas Department of Criminal
Justice. We AFFIRM Chavez’s sentence.
                                    BACKGROUND
       In 2010, Chavez pleaded guilty without a plea agreement to one count of
illegal reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b). The
district court sentenced him several months later. Chavez’s base offense level
was eight.     See U.S.S.G. § 2L1.2(a). The district court applied a 12-level
enhancement because Chavez had previously been deported subsequent to a
prior felony drug trafficking conviction, “for which the sentence imposed was 13
months or less.” U.S.S.G. § 2L1.2(b)(1)(B). The district court also subtracted
three levels for acceptance of responsibility, so that his total offense level was 17.
Chavez’s criminal history score was nine, placing him in criminal history
category IV. The resulting advisory guideline sentencing range was 37 to 46
months of imprisonment; Chavez received 37 months.
       Chavez’s felony drug trafficking conviction was a 1996 Texas conviction for
delivery of cocaine by actual transfer.2 At the proceeding where Chavez pleaded
guilty, the state court sentenced him to two years of imprisonment, but
suspended that sentence. Chavez was instead placed on community supervision
for five years. A year later, the state of Texas alleged that Chavez had violated
the terms of his community supervision. The state court continued Chavez’s
community supervision, but modified its terms to include a condition that he

       2
        Chavez does not challenge the district court’s determination that his Texas conviction
constitutes a felony drug trafficking conviction.

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                                   No. 11-20091

remain in a substance abuse felony punishment facility (SAFPF) for up to one
year.
        Texas law states that if a state court “continues or modifies community
supervision after determining that the defendant violated a condition of
community supervision, the judge may impose any other conditions the judge
determines are appropriate, including . . . the placement of the defendant in a
substance abuse felony punishment program.” Tex. Code Crim. Proc. art. 42.12
§ 22(a)(4). Chavez does not dispute that persons who are ordered to participate
in an SAFPF program are not free to leave. See Tex. Gov’t Code § 493.009(a)
(directing the Texas Department of Criminal Justice to create SAFPFs as “a
program to confine and treat,” inter alia, “defendants required to participate in
the program under [Tex. Code Crim. Proc. art. 42.12]” (emphasis added)); id.
§ 493.009(d) (explaining that the release date for a participant is determined by
a “qualified professional”); Tex. Code Crim. Proc. art. 42.12 § 23(b) (referring to
time spent “in a substance abuse treatment facility operated by the Texas
Department of Criminal Justice under [Tex. Gov’t Code § 493.009], or another
court-ordered residential program or facility” (emphases added)).
        Chavez argued to the district court that his period of confinement in the
SAFPF did not constitute a “sentence imposed” for the purposes of U.S.S.G.
§ 2L1.2(b)(1)(B). His objection was overruled, and Chavez timely appealed.
                            STANDARD OF REVIEW
        This case requires us to decide whether the district court erred in applying
an enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(B), for Chavez’s 1996 Texas
conviction. This court “review[s] the district court’s application of the sentencing
guidelines de novo.” United States v. Jasso, 587 F.3d 706, 709 (5th Cir. 2009).
                                    ANALYSIS
        A defendant being sentenced for illegal reentry is subject to a 12-level
increase if he was previously deported following “a conviction for a felony drug

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                                       No. 11-20091

trafficking offense for which the sentence imposed was 13 months or less.”
U.S.S.G. § 2L1.2(b)(1)(B) (emphasis added).                The applicable commentary
explains that “‘[s]entence imposed’ has the meaning given the term ‘sentence of
imprisonment’ in Application Note 2 and subsection (b) of § 4A1.2.” U.S.S.G. §
2L1.2, cmt. n.1(B)(vii). In turn, § 4A1.2(b) states:
       (1)    The term “sentence of imprisonment” means a sentence of
              incarceration and refers to the maximum sentence imposed.
       (2)    If part of a sentence of imprisonment was suspended,
              “sentence of imprisonment” refers only to the portion that
              was not suspended.
U.S.S.G. § 4A1.2(b). Here, Chavez’s sentence of two years of incarceration was
suspended in its entirety. However, Application Note 2 of § 4A1.2 also indicates
that a “sentence of probation” does constitute a sentence of imprisonment if “a
condition of probation requir[es] imprisonment.” U.S.S.G. § 4A1.2, cmt. n.2.3
Thus, the question is whether Chavez’s confinement in the SAFPF constitutes
a sentence of imprisonment.4
       In addition to § 4A1.2, another Guidelines provision, § 4A1.1, and its
accompanying commentary, shed light on the meaning of “sentence of
imprisonment.”5 In United States v. Brooks, 166 F.3d 723 (5th Cir. 1999), we

       3
         Application Note 2 states that a sentence of probation constitutes a sentence under
§ 4A1.1(c) — i.e., a sentence of imprisonment “of less than 60 days,” or “probation, fines, and
residency in a halfway house, see U.S.S.G. § 4A1.1 cmt. background. U.S.S.G. § 4A1.2, cmt.
n.2. But if the sentence of probation includes a condition “requiring imprisonment of at least
sixty days,” then it constitutes a sentence under § 4A1.1(b) (sentence of imprisonment of at
least sixty days) or § 4A1.1(a) (a sentence of imprisonment exceeding one year and one month).
U.S.S.G. § 4A1.2, cmt. n.2.
       4
         We note that this court has held that a defendant’s sentence, which “was suspended
with five years’ probation,” was not a “sentence imposed” for the purposes of § 2L1.2(b)(1)(B).
United States v. Rodriguez-Parra, 581 F.3d 227, 229 (5th Cir. 2009). However, in Rodriguez-
Parra, the defendant was not ordered to be confined while he was on probation. Here, in
contrast, Chavez was ordered to be confined in an SAFPF.
       5
         This is because § 4A1.2 provides definitions and instructions for computing criminal
history, and criminal history categories are actually calculated under § 4A1.1.

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held that a defendant’s time in a “boot camp” constituted “a sentence of
imprisonment” for the purposes of § 4A1.1. Id. at 726. We explained that the
dispositive factor was whether the defendant was physically confined while
serving his prior sentence, and that “[t]he commentary to U.S.S.G. § 4A1.1 . . .
expressly distinguish[es]” sentences that do “not requir[e] twenty-four hours a
day physical confinement, such as ‘probation, fines, and residency in a halfway
house,’” from those that do require such confinement. Id. at 727.6 Thus, in
Brooks, although the defendant had not been incarcerated, because he “was not
free to leave the boot camp,” we concluded that “his confinement there”
constituted a “sentence of imprisonment.” Id.
       Here, Chavez does not dispute that he was likewise confined to the
SAFPF, and was not free to leave. Thus, his time in an SAFPF constitutes a
“sentence of imprisonment” for the purposes of §§ 4A1.1 and 4A1.2. And, as
noted above, a “sentence imposed” for the purposes of § 2L1.2(b)(1)(B) “has the
meaning given the term ‘sentence of imprisonment’” in § 4A1.2. U.S.S.G.
§ 2L1.2(b), cmt. n.1(B)(vii). Accordingly, Chavez’s time in an SAFPF constitutes
a “sentence imposed” for the purposes of § 2L1.2(b)(1)(B).
       Additionally, under Brooks, Chavez’s argument that placement in an
SAFPF constitutes community confinement rather than imprisonment under
Texas law, and thus should not be a “sentence of imprisonment,” is unavailing.
In Brooks, the defendant raised the same argument, explaining “that Texas law
treats boot camp as community corrections, not imprisonment.” 166 F.3d at 726.
This court rejected that argument, stating:
       “Section 4A1.2(b) of the guidelines defines a sentence of
       imprisonment as a ‘sentence of incarceration.’ This suggests that


       6
        Although Brooks was decided in 1999, the commentary to § 4A1.1 in the 2010 version
of the Guidelines continues to draw a distinction between sentences of imprisonment, which
the commentary refers to as “confinement sentences,” and sentences such as “probation, fines,
and residency in a halfway house.” See U.S.S.G. § 4A1.1, cmt. background.

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                                      No. 11-20091

       physical confinement is a key distinction between sentences of
       imprisonment and other types of sentences. The guidelines make
       no distinction between offenders incarcerated primarily for
       rehabilitation and those incarcerated simply to remove the offender
       from society.”
Id. at 726-27 (quoting United States v. Vanderlaan, 921 F.2d 257, 259 (10th Cir.
1990)).7
      Moreover, the fact that Chavez was not initially sentenced to serve time in
an SAFPF does not affect whether his sentence constitutes a “sentence imposed.”
Nothing in the applicable Guidelines or accompanying commentary indicates that
the sentence can only be the one that was initially pronounced, without inclusion
of any later modifications.
      Finally, the rule of lenity does not operate here in Chavez’s favor. “The rule
of lenity applies only if, after seizing everything from which aid can be derived,
we can make no more than a guess as to what Congress intended.” United States
v. Mendez-Casarez, 624 F.3d 233, 241 (5th Cir. 2010) (quoting Reno v. Koray, 515
U.S. 50, 65 (1993) (citations and quotation marks omitted)). In United States v.
Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010), this court applied the rule of lenity
in a case where the question was whether a defendant’s prior conviction qualified
him for a sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A).8 The
difficulty in Bustillos-Pena was that the defendant’s probation for the prior
conviction was revoked only after he had illegally reentered the country. Id. at
864. This court concluded that the provision was ambiguous, explaining that
applying the enhancement would mean “that a guideline enhancement designed

       7
          Chavez also argues that his time in the SAFPF would not count towards credit for
serving a term of imprisonment under Texas or federal law. Assuming that this argument is
true, it may point out an inconsistency in the Guidelines, but does not require us to deviate
from the settled interpretation of “sentence imposed” under U.S.S.G. § 2L1.2(b).
       8
        U.S.S.G. § 2L1.2(b)(1)(A) provides for a 16-level enhancement where the defendant
was previously deported for “a drug trafficking offense for which the sentence imposed
exceeded 13 months.”

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                                   No. 11-20091

to reflect the nature of a defendant’s illegal reentry offense could be triggered by
unrelated conduct that occurred long after the reentry.” Id. at 867 (emphasis
added); see also id. at 867-68 (noting that applying the enhancement where
probation was revoked after illegal reentry would lead to disparate outcomes,
depending on whether the defendant was first apprehended by immigration or
state authorities).
      The concerns implicated in Bustillos-Pena do not apply here, however,
because Chavez’s sentence was modified before, not after he was deported.
Chavez was sentenced to confinement in the SAFPF in August 1997, and he was
removed in March 1998. Thus, we are able to “make more than a guess” at what
the Sentencing Commission intended, so the rule of lenity does not operate in
Chavez’s favor.
                                CONCLUSION
      For the above reasons, we AFFIRM Chavez’s sentence.




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