     Case: 17-41204   Document: 00515020221        Page: 1   Date Filed: 07/02/2019




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


                                    No. 17-41204                       FILED
                                                                    July 2, 2019
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             Plaintiff - Appellee

v.

RAFAEL CORTEZ-GONZALEZ,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Rafael Cortez-Gonzalez pled guilty to one count of transporting illegal
aliens.   He contends the district court erred by applying a four-level
enhancement under Sentencing Guideline Section 2L1.1(b)(3)(B) when one of
the enhancement’s predicate offenses could not be counted for criminal history
points under Section 4A1.2(e). The district court did not err. We AFFIRM.


                 FACTUAL AND PROCEDURAL HISTORY
      On June 17, 2017, a Remote Video Surveillance System operator with
the United States Bureau of Customs and Border Protection (CBP) using
infrared technology observed ten individuals exit a white Ford F-250 pickup
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                                  No. 17-41204
truck near a ranch less than a mile south of the Sarita checkpoint around
midnight. The truck then proceeded south on Highway 77 with CBP officers
following. Shortly after midnight, the CBP officers attempted to stop the truck
using their vehicle’s lights and sirens.
      Instead of pulling over, the driver of the truck, Raymond Teran-Alfaro,
sped away. This led to a pursuit for about 25 miles, reaching speeds of close to
100 miles per hour. Eventually the truck left the paved road, drove over some
railroad tracks, and became immobilized. The driver tried to escape on foot
but was arrested a few minutes later about 150 yards from the truck.
      Meanwhile, other CBP officers searched for the ten individuals who had
earlier exited the truck at the ranch. This search led to another foot pursuit,
where CBP officers were able to arrest eight of the ten. Cortez-Gonzalez was
one of the eight arrested.       CBP later discovered Cortez-Gonzalez was
transporting undocumented aliens in the bed of the truck to a predesignated
location, then operating as a brush guide in an effort to bring them into the
United States.
      In July 2017, a grand jury indicted Cortez-Gonzalez on one count of
conspiracy    to   transport   illegal     aliens   in   violation   of   8   U.S.C.
§ 1324(a)(1)(A)(v)(I), and three counts of transporting illegal aliens in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II). Cortez-Gonzalez pled guilty to one of the
counts of transporting illegal aliens. The court granted the Government’s
motion to dismiss the other three counts.
      The presentence investigation report (PSR) applied a base offense level
of 12. Among other enhancements, the PSR recommended the court apply a
four-level enhancement under Section 2L1.1(b)(3)(B).            Section 2L1.1(b)(3)
provides for a four-level enhancement “[i]f the defendant committed any part
of the instant offense after sustaining . . . two (or more) convictions for felony
immigration and naturalization offenses, each such conviction arising out of a
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separate prosecution.” One of Cortez-Gonzalez’s felony convictions providing
the basis for the enhancement was from 2003, the other from 2017.
Section 4A1.2(e), though, provides that certain older convictions are not used
to compute criminal history points. The 2003 conviction was such a conviction
not assigned criminal history points.
      At his sentencing hearing, Cortez-Gonzalez objected to the four-level
enhancement under Section 2L1.1(b)(3)(B), describing the 2003 offense as
“really stale.” He did not object to the other underlying conviction that, if it
had been the only one, would have led to a two-level enhancement. U.S.S.G.
§ 2L1.1(b)(3)(A).    The court overruled his objection without explanation,
applied the four-level enhancement, and sentenced Cortez-Gonzalez at the
high end of the Guidelines range to 37 months in prison.
      Cortez-Gonzalez appealed. Originally, his counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), to support a motion to withdraw
as counsel, having concluded there was no nonfrivolous issue for an appeal. In
a footnote, counsel conceded that the court correctly overruled the contention
that the 2003 offense was too old to count under the Section 2L1.1(b)(3)
enhancement. Nevertheless, an order from our court found the Anders brief
unpersuasive on the Section 2L1.1(b)(3) contention and ordered either a
supplemental brief or for counsel to retract the motion to withdraw and file a
brief on the merits. Cortez-Gonzalez’s counsel chose to withdraw the motion
and proceed in the appeal.


                                DISCUSSION
      The sole issue is whether the district court procedurally erred in using
the 2003 conviction for the Section 2L1.1(b)(3)(B) enhancement when the
conviction was ineligible for criminal history points under Section 4A1.2(e).


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                                  No. 17-41204
      “We review a district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error.” United States v.
Nash, 729 F.3d 400, 403 (5th Cir. 2013). Our review of whether a past offense
can serve as a predicate offense under the Section 2L1.1(b)(3)(B) enhancement
is de novo. Cf. id.
      When “interpreting the Sentencing Guidelines, we apply the ordinary
rules of statutory construction.” United States v. Serfass, 684 F.3d 548, 551
(5th Cir. 2012). “When the language of the guideline is unambiguous, the plain
meaning of that language is controlling unless it creates an absurd result.” Id.
We apply the rule of lenity “if that language is ambiguous.” Id.
      Cortez-Gonzalez asserts the district court miscalculated his Guidelines
range because of the Section 2L1.1(b)(3)(B) enhancement. In other words, he
contends the court committed procedural error. Gall v. United States, 552 U.S.
38, 51 (2007) (noting “significant procedural error” includes “failing to calculate
(or improperly calculating) the Guidelines range”).
      Cortez-Gonzalez contends that because “the 10-month sentence that he
received for the 2003 alien-transporting offense was too stale to receive
criminal-history points and therefore was ‘not counted,’ . . . it was erroneous
for the district court to use that prior conviction as a basis for [the]
enhancement” at issue. As support, Cortez-Gonzalez relies on the commentary
for Section 2L1.1. Note number two is his focus: “Prior felony conviction(s)
resulting in an adjustment under subsection (b)(3) are also counted for
purposes of determining criminal history points pursuant to Chapter Four,
Part A (Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Under this argument,
if the prior conviction did not result in criminal history points, it cannot be a
predicate offense for the enhancement. Cortez-Gonzalez also argues that we
should apply the rule of lenity because the Guidelines are ambiguous.


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                                  No. 17-41204
      These arguments are unpersuasive.           First, the plain text of the
Sentencing Guideline does not limit the predicate offense for the enhancement
in Section 2L1.1(b)(3) to offenses that could count for criminal history points.
That Guideline states:
      If the defendant committed any part of the instant offense after
      sustaining (A) a conviction for a felony immigration and
      naturalization offense, increase by 2 levels; or (B) two (or more)
      convictions for felony immigration and naturalization offenses,
      each such conviction arising out of a separate prosecution, increase
      by 4 levels.

U.S.S.G. § 2L1.1(b)(3). There is no stated temporal limitation on predicate
offenses that invoke the enhancement. We find no absurdity in the lack of such
a limitation. That obligates us “to enforce [the language] according to its
terms.” Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (citations
omitted).
      Second, note two in the commentary to Section 2L1.1 does not compel a
different result. As a rule, Sentencing Guideline “[c]ommentary contained
in . . . application notes is ‘authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.’” United States v. Miller, 607 F.3d 144, 148 n.2 (5th Cir. 2010)
(quoting United States v. Johnston, 559 F.3d 292, 295 n.4 (5th Cir. 2009)).
      Here, the note states:      “Prior felony conviction(s) resulting in an
adjustment under subsection (b)(3) are also counted for purposes of
determining criminal history points pursuant to Chapter Four, Part A
(Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Cortez-Gonzalez argues this
note “presumably” supports the inverse idea that “when a sentence for a prior
felony conviction was too stale to receive criminal-history points” under
Sentencing Guideline Section 4A1.2(e)(3), “that prior felony conviction could



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                                  No. 17-41204
not be [a] basis for enhancement under U.S.S.G. § 2L1.1(b)(3).” That, though,
is not what the note says, and we will not re-write it.
      Notably, the comment does not mandate that if the prior felony
conviction is ineligible for criminal history points, it cannot serve as the
predicate offense for the enhancement.          The United States Sentencing
Commission could have included such a limitation if it so intended. See United
States v. Camacho-Ibarquen, 410 F.3d 1307, 1313 (11th Cir. 2005) (noting the
Sentencing Commission was capable of “explicitly limit[ing] the application of
certain convictions”). For example, Section 2L1.2 cmt. n.3 (which is not at
issue in this appeal) states the following:
             Criminal History Points.—For purposes of applying
      subsections (b)(1), (b)(2), and (b)(3), use only those convictions that
      receive criminal history points under §4A1.1(a), (b), or (c). In
      addition, for purposes of subsections (b)(1)(B), (b)(2)(E), and
      (b)(3)(E), use only those convictions that are counted separately
      under §4A1.2(a)(2).

             A conviction taken into account under subsection (b)(1),
      (b)(2), or (b)(3) is not excluded from consideration of whether that
      conviction receives criminal history points pursuant to Chapter
      Four, Part A (Criminal History).

U.S.S.G. § 2L1.2 cmt. n.3 (italicized emphasis added). This is the type of
limitation Cortez-Gonzalez urges our court to read into Section 2L1.1(b)(3).
The Sentencing Commission did not make such a specific limitation, and we
are not free to impose that limitation judicially.
      We also examine the original statutory text instructing the Sentencing
Commission to include the Section 2L1.1(b)(3) language.               The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)
instructed the Sentencing Commission to
      impose an appropriate sentencing enhancement upon an offender
      with 1 prior felony conviction arising out of a separate and prior

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                                 No. 17-41204
      prosecution for an offense that involved the same or similar
      underlying conduct as the current offense, to be applied in addition
      to any sentencing enhancement that would otherwise apply
      pursuant to the calculation of the defendant’s criminal history
      category.
Pub. L. No. 104-208, § 203(e)(2)(C), 110 Stat. 3009-565 to 567 (codified at 28
U.S.C. § 994 note); id. at § 203(e)(2)(D) (providing for a further enhancement
if there are “2 or more” such “prior felony convictions”); see also U.S.S.G.
APPENDIX B at 65–66 (citing text from IIRITA in conjunction with the 2016
Sentencing Guidelines). The statute provides that the enhancement will apply
“in addition to any sentencing enhancement that would otherwise apply
pursuant to the calculation of the defendant’s criminal history category.” Id.
at § 203(e)(2)(C), (D) (emphasis added). The Sentencing Guidelines reflected
these new instructions in the 1997 manual and maintained them in the 2016
manual.   Compare U.S.S.G. § 2L1.1(b)(3) & cmt. n.5 (1997) with U.S.S.G.
§ 2L1.1(b)(3) & cmt. n.2 (2016).    Having determined “the language of the
Guidelines is unambiguous” and not absurd, our inquiry is concluded. United
States v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007).
      That lack of ambiguity also defeats Cortez-Gonzalez’s argument that the
rule of lenity should apply. See United States v. Bustillos-Pena, 612 F.3d 863,
868–69 (5th Cir. 2010) (noting “we apply the rule of lenity to [the Sentencing
Guidelines] when we find that they are ambiguous” and have already
unsuccessfully attempted to resolve that ambiguity through the canons of
construction).
      AFFIRMED.




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