                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 97-4326
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota
Trinidad Cazares-Gonzalez,                *
                                          *    [TO BE PUBLISHED]
             Appellant.                   *
                                     ___________

                            Submitted: June 5, 1998

                                Filed: August 14, 1998
                                     ___________

Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
                            ___________

PER CURIAM.

       Trinidad Cazares-Gonzalez, a citizen of Mexico, appeals from the final judgment
entered in the United States District Court for the District of Minnesota1 upon his guilty
plea to being found in the United States on April 7, 1997, after having been deported
following a conviction for aggravated rape, in violation of 8 U.S.C. § 1326(b)(2). The
district court sentenced him to 77 months imprisonment and three years supervised
release. For reversal, Cazares-Gonzalez argues that his prior aggravated rape

      1
       The Honorable Paul A. Magnuson, Chief Judge, United States District Court for
the District of Minnesota.
conviction was not an “aggravated felony” for purposes of enhancing his sentence under
the Guidelines. For the reasons discussed below, we affirm the judgment of the district
court.

       Applying the 1995 Guidelines, the probation officer who prepared the
presentence report (PSR) added 16 levels to Cazares-Gonzalez’s base offense level
under U.S.S.G. § 2L1.2(b)(2) (1995), 2 which requires the increase when the offender
“was deported after a conviction for an aggravated felony.” The probation officer
concluded that the increase applied because Cazares-Gonzalez&s 1978 aggravated rape
conviction, for which he had been sentenced to imprisonment for two to twenty years,
was an aggravated felony. Cazares-Gonzalez objected, contending that his rape
conviction was not an aggravated felony, but the district court disagreed and applied the
16-level increase. After de novo review, see United States v. Eagle, 133 F.3d 608, 611
(8th Cir. 1998) (conducting de novo review where question involved legal interpretation
of Guidelines term), we conclude that the district court’s ruling was correct.

      The definition of "aggravated felony" appears both in the Immigration and
Nationality Act, 8 U.S.C. § 1101 et seq. (the Act), and in the Guidelines, as the basis
for increased penalties for illegal reentry offenses. In 1988, when Congress first
established the increased penalty in the Act--providing in 8 U.S.C. § 1326(b)(2) (1988)
for imprisonment of up to 15 years when the alien had been removed following a
conviction for an aggravated felony--“aggravated felony” was defined to include only
murder, as well as some drug and gun offenses. See 8 U.S.C. § 1101(a)(43) (1988).
In 1990, Congress expanded the definition to include nonpolitical crimes of violence for
which the defendant was sentenced to at least five years imprisonment, see 8 U.S.C.




      2
      Under the November 1, 1997 Guidelines, this section has been renumbered as
§ 2L1.2(b)(1)(A).

                                          -2-
§ 1101(a)(43) (1994),3 but the expanded definition was made to apply only to
aggravated felonies committed after the effective date of the 1990 amendment (a
restriction which would exclude Cazares-Gonzalez’s 1978 rape conviction). See United
States v. Baca-Valenzuela, 118 F.3d 1223, 1225-26, 1228 (8th Cir. 1997) (tracing
history of penalty provisions of § 1326). In 1996 Congress again broadened the
definition by providing, among other things, that § 1101(a)(43)’s definition of
aggravated felony applied regardless of the age of the conviction. See Omnibus
Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, § 321(b), 110 Stat.
3009, 3009-628 (1996) (codified as amended at 8 U.S.C. § 1101(a)(43) (1994 & Supp.
II)).

       Effective November 1, 1991, the Sentencing Commission adopted a Guidelines
definition of aggravated felony that followed § 1101(a)(43)’s definition of aggravated
felony, as it read after the 1990 amendment, with one significant difference: the
Guidelines definition did not specify any restriction on the age of those felonies
qualifying as aggravated felonies--it merely concluded with a general reference to
§ 1101(a)(43).4 See U.S.S.G. App. C at 189, Amendment No. 375. Effective


      3
        Under 8 U.S.C. § 1101(a)(43) (1994), the amended definition of “aggravated
felony” included, among other crimes: “a crime of violence (as defined in section 16
of title 18, but not including a purely political offense) for which the term of
imprisonment imposed . . . is at least 5 years.”

      Under 18 U.S.C. § 16, a “crime of violence” includes “an offense that has as an
element the use, attempted use, or threatened use of physical force against the person
or property of another.”
      4
       The November 1995 Guidelines defined “aggravated felony” in commentary as

      murder; any illicit trafficking in any controlled substance (as defined in 21
      U.S.C. § 802), including any drug 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.

                                          -3-
November 1, 1997, the Guidelines definition was amended to provide that “#Aggravated
felony,& is defined at 8 U.S.C. § 1101(a)(43) without regard to the date of conviction of
the aggravated felony.” Id. at 411, Amendment No. 562.

       The Guidelines generally instruct courts to apply the Guidelines Manual in effect
on the date the defendant is sentenced. See U.S.S.G. § 1B1.11(a) (1997). And under
the 1997 Guidelines--the Guidelines in effect when the district court sentenced Cazares-
Gonzalez in December 1997--the 1978 rape conviction clearly was an aggravated felony
warranting the 16-level enhancement. In addition, the rape conviction qualified as an
aggravated felony under the Act, as amended in 1996.

       Cazares-Gonzalez argued at sentencing, however, that applying the 1997
Guidelines to him would constitute an ex post facto violation, because under the prior
Guidelines his rape conviction was not an aggravated felony, and he had committed the
instant offense before the effective date of the 1997 Guidelines. See United States v.
Bell, 991 F.2d 1445, 1452 (8th Cir.1993) (Ex Post Facto Clause is violated if defendant
is sentenced under Guidelines in effect at time of sentencing when those Guidelines
produce sentence harsher than one permitted under Guidelines effect at time crime is
committed). On appeal, Cazares-Gonzalez also addresses the 1996 statutory
amendment, which the parties were unaware of at sentencing. He argues that, although



      § 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 whether 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 imprisonment
      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) (Amendment No. 375).

                                          -4-
his rape conviction may have qualified as an aggravated felony under the Act as
amended in 1996, the issue in this case is the proper interpretation of “aggravated
felony” under U.S.S.G. § 2L1.2. He argues that the Commission adopted the
Guidelines definition applicable to his case in 1991, and that the 1996 statutory
amendment had no effect on the then-existing Guidelines definition.

       In support of his interpretation of the pre-1997 Guidelines definition of
aggravated felony, Cazares-Gonzalez urged the district court to follow United States v.
Fuentes-Barahona, 111 F.3d 651, 652-53 (9th Cir. 1997) (per curiam), in which the
Ninth Circuit, construing the Guidelines definition adopted in 1991, concluded that a
crime of violence committed before November 1990 did not qualify as an aggravated
felony for purposes of § 2L1.2(b)(2). The Ninth Circuit concluded that it was
appropriate to apply the rule of lenity because, by referring a sentencing court to
§ 1101(a)(43), the Guidelines commentary “arguably indicate[d] that there [was] a time
restriction on the <crime of violence’ definition.” See 111 F.3d at 652. In rejecting
Cazares-Gonzalez’s argument, the district court followed the Seventh Circuit’s contrary
view. See United States v. Munoz-Cerna, 47 F.3d 207, 207-09, 212 (7th Cir. 1995)
(defendant&s sentence could be enhanced under U.S.S.G. § 2L1.2(b)(2) based on
conviction for attempted armed robbery in 1987).

       We conclude Munoz-Cerna represents the better view. In Munoz-Cerna, 47 F.3d
at 211, the Seventh Circuit concluded that there was no indication the Commission
intended the specific offense characteristics in U.S.S.G. § 2L1.2(b) to “be read as
directly correlated to the various subsections of § 1326.” Noting the different effective
dates in § 1101(a)(43) and U.S.S.G. § 2L1.2(b), among other things, the court was
persuaded that, while Congress had preferred to make the Act’s 15-year sanction
prospective, it had been “content in approving the guideline to employ the normal
pattern and to permit the provision to have retrospective effect in the sense that all
previous felonies could be brought within its scope.” Id. at 212. Recently the Eleventh
Circuit, also construing the 1991 Guidelines definition of aggravated felony, agreed that


                                          -5-
U.S.S.G. § 2L1.2 stands independently of § 1326, and that therefore “a previous offense
may be an #aggravated felony& for the purpose of the 16-level enhancement in the
guideline while not qualifying for the statutory enhancement at 8 U.S.C. § 1326(b)(2).”
See United States v. Lazo-Ortiz, 136 F.3d 1282, 1285 (11th Cir. 1998) (footnote
omitted), petition for cert. filed, No. 97-9478 (U.S. June 8, 1998).

       Because we agree with the views of the Munoz-Cerna and Lazo-Ortiz courts, we
conclude Cazares-Gonzalez’s prior rape conviction constituted an “aggravated felony”
under the Guidelines definition adopted in 1991. Thus, the district court properly
rejected his ex post facto argument and applied the contested 16-level increase.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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