                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 11 1998
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,
                                                        No. 97-2291
          Plaintiff - Appellee,
                                                 (D.C. No. CV-97-1022 JC;
 v.
                                                       CR-96-178 JC)
                                             (United States District Court for the
 PEDRO VASQUEZ-CARRIZOZA,
                                                  District of New Mexico)
          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.



      Petitioner appeals the district court's denial of his motion under 28 U.S.C.

§ 2255 to vacate, set aside, or correct the sentence he received for illegally

reentering the United States in violation of 8 U.S.C. § 1326 (1996). We reverse




      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
the district court's denial of petitioner's motion and remand for further

proceedings. 1

                                   DISCUSSION

      Petitioner-Appellant Pedro Vasquez-Carrizoza ("Vasquez-Carrizoza") pled

guilty to one count of illegally reentering the United States in violation of 8

U.S.C. § 1326(a)(1), (a)(2), & (b)(2). The plea agreement provided, "The

defendant and the United States agree . . . that the appropriate sentence shall not

exceed 48 months imprisonment." Vasquez-Carrizoza was sentenced on

December 12, 1996 under Federal Rule of Criminal Procedure 11(e)(1)(C) to

forty-eight months imprisonment and three years supervised release. However,

the single count indictment only charged him with violating 8 U.S.C.

§ 1326(a)(1), (a)(2), & (b)(1), not (b)(2). Further complicating matters, the

district court entered a judgment of conviction against Vasquez-Carrizoza only for

violating 8 U.S.C. § 1326(a)(1) & (a)(2), not (b)(1) or (b)(2). The discrepancies

between the plea agreement, indictment, and judgment are important because

Vasquez-Carrizoza alleges that he received ineffective assistance of counsel as a

result of his attorney's failure to object to the sentence imposed.




      1
       We hereby grant the United States’ Motion For Leave to File Late
Response Brief.

                                         -2-
      The 48-month sentence imposed on Vasquez-Carrizoza reflected an overall

offense level of 17 under the United States Sentencing Guidelines (the

"Guidelines"). Under § 2L1.2(b)(2) of the Guidelines, 2 the sentencing court


      2
         Section 2L1.2 of the Guidelines, entitled "Unlawfully Entering or
Remaining in the United States," provides for a base offense level of 8.
Subsection (b)(2) of § 2L1.2 provided, "If the defendant previously was deported
after a conviction for an aggravated felony, increase by 16 levels." Application
Note 7 to § 2L1.2 provided in relevant part:
       "Aggravated felony," as used in subsection (b)(2), means . . . 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) . . . .
       The term "aggravated felony" applies to offenses described in the previous
       sentence whether in violation of federal or state law.
       In 1997, § 2L1.2 was amended by deleting subsection (b)(2) and replacing
it with a new subsection (b)(1)(A). See Guidelines, Appendix C, Amendment 563
(1998). The new provision still requires a 16-level increase for an alien who
illegally enters the United States following his conviction and deportation for an
aggravated felony. Application Note 7 to § 2L1.2 also was deleted and two new
application notes dealing with aggravated felonies were added. Application Note
1 to § 2L1.2 now provides, "Aggravated felony is defined at 8 U.S.C.
§ 1101(a)(43) without regard to the date of conviction of the aggravated felony."
Application Note 5 to § 2L1.2 now provides:
       Aggravated felonies that trigger the adjustment from subsection (b)(1)(A)
       vary widely. If subsection (b)(1)(A) applies, and (A) the defendant has
       previously been convicted of only one felony offense; (B) such offense was
       not a crime of violence or firearms offense; and (C) the term of
       imprisonment imposed for such offense did not exceed one year, a
       downward departure may be warranted based on the seriousness of the
       aggravated felony.
8 U.S.C. § 1101(a)(43) provides in relevant part:
       The term "aggravated felony" means--
       ****
       (B) illicit trafficking in a controlled substance (as defined in section 802 of
       Title 21), including a drug trafficking crime (as defined in section 924(c) of
       Title 18)
                                                                         (continued...)

                                         -3-
increased Vasquez-Carrizoza's offense level to 24 from a base level of 8 because

Vasquez-Carrizoza had reentered the country after being deported following an

aggravated felony--Vasquez-Carrizoza had pled guilty to possession with intent to

distribute marijuana in New Mexico state court on November 23, 1994. The

sentencing court then reduced the offense level to 17 after making a 3-level

downward adjustment for acceptance of responsibility and a 4-level downward

adjustment for agreement to deportation. Although Vasquez-Carrizoza was

sentenced to 48 months imprisonment, the maximum penalty for violating 8

U.S.C. § 1326(a)(1) and (a)(2), the offense for which judgment was entered

against Vasquez-Carrizoza, is two years imprisonment. Vasquez-Carrizoza did

not file a direct appeal of his criminal conviction or sentence.

      On August 4, 1997, Vasquez-Carrizoza filed a motion to vacate, set aside,

or correct his sentence under 28 U.S.C. § 2255 in the United States District Court

for the District of New Mexico. Vasquez-Carrizoza argued that the district court

improperly sentenced him under § 2L1.2(b)(2). In addition, Vasquez-Carrizoza

noted that his prison sentence of 48 months exceeds the statutory maximum

sentence of two years imprisonment allowed under 8 U.S.C. § 1326(a)(1) & (2).



      2
       (...continued)
      ****
      The term applies to an offense described in this paragraph whether in
      violation of Federal or State law.

                                         -4-
Vasquez-Carrizoza claimed that his defense counsel should have contested the

sentence and that his attorney's failure to raise the sentencing issue in the criminal

proceedings before the district court or to appeal the conviction and sentence

constituted ineffective assistance of counsel. 3 The district court denied Vasquez-

Carrizoza's § 2255 motion on August 20, 1997, and denied a certificate of

appealability on September 16, 1997, after Vasquez-Carrizoza filed a timely

notice of appeal. Because Vasquez-Carrizoza filed his § 2255 motion after April

24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 applies and

we must issue a certificate of appealability in order to consider this appeal. See

28 U.S.C.A. § 2253(c)(2) (West Supp. 1997); see also Lindh v. Murphy, 117 S.

Ct. 2059, 2068 (1997). In an Order dated February 10, 1998, we issued a

certificate of appealability to determine whether Vasquez-Carrizoza received

ineffective assistance of counsel because his counsel did not object either at

sentencing or on appeal to the sentence imposed, because the sentence exceeded



      3
         Because Vasquez-Carrizoza's claim that he received an improper sentence
was not raised on appeal, he is procedurally barred from bringing the claim in a
§ 2255 motion unless "he can show cause excusing his procedural default and
actual prejudice resulting from the errors of which he complains, or can show that
a fundamental miscarriage of justice will occur if his claim is not addressed."
United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993). However, Vasquez-
Carrizoza also claims that his failure to raise the sentencing issue on direct appeal
resulted from ineffective assistance of counsel. Because ineffective assistance of
counsel may constitute cause, we may consider the sentencing issues raised by
Vasquez-Carrizoza in the context of his ineffective assistance of counsel claim.

                                         -5-
the maximum sentence statutorily allowable for the offense described in the

judgment of conviction, and because the offense to which he pled guilty was not

the same as the indictment or the judgment of conviction, recognizing that the

sentence imposed matched the sentence agreed to by Vasquez-Carrizoza's guilty

plea. We now address the issues raised in the February 10th Order. 4

      8 U.S.C. § 1326(a) makes illegal the reentry of aliens who do not obtain the

prior consent of the Attorney General and who have been arrested and deported or

excluded and deported or who have departed the United States while an order of

exclusion or deportation is outstanding. The maximum term of imprisonment for

violating § 1326(a) is two years. In contrast, 8 U.S.C. § 1326(b) increases the

punishment for the reentry of aliens:

      (1) whose deportation was subsequent to a conviction for commission of
      three or more misdemeanors involving drugs, crimes against the person, or



      4
         Vasquez-Carrizoza's § 2255 motion also contended that his prior state
court conviction for drug trafficking did not qualify as an aggravated felony under
8 U.S.C. § 1326(b)(2) because it resulted in a sentence of less than five years
imprisonment and that his attorney's failure to advise him of that fact before
entering his guilty plea resulted in ineffective assistance of counsel. We did not
issue a certificate of appealability on this issue in our February 10th Order. We
find Vasquez-Carrizoza's arguments on this point to be without merit, regardless
of whether we apply the old or the new § 2L1.2 of the Guidelines (see discussion,
supra, note 2), and deny a certificate of appealability on this issue. See United
States v. Andrino-Carillo, 63 F.3d 922, 924-25 (9th Cir. 1995), cert. denied, 516
U.S. 1064 (1996) ("aggravated felony" under § 1326(b)(2) includes felony drug
trafficking offenses that do not result in a term of imprisonment of at least five
years).

                                        -6-
      both, or a felony (other than an aggravated felony), such alien shall be
      fined under Title 18, imprisoned not more than 10 years, or both;
      (2) whose deportation was subsequent to a conviction of an aggravated
      felony, such alien shall be fined under such Title, imprisoned not more than
      20 years, or both.

Because the maximum sentence under § 1326(a) is two years imprisonment,

Vasquez-Carrizoza contends that the district court erred by sentencing him to a

term of imprisonment longer than two years under § 2L1.2(b)(2), which covers

aggravated felonies and thus is applicable to § 1326(b)(2), but not to § 1326(a). 5

      Vasquez-Carrizoza received the exact sentence he bargained for in entering

into the plea agreement. The parties apparently contemplated a conviction under

§ 1326(b)(2). Nevertheless, we cannot be sure that the district court did not

intend to convict Vasquez-Carrizoza only of violating 8 U.S.C. § 1326(a)(1) &

(2), in which case the 48-month sentence would have been improper. On the

other hand, the sentencing court may have made a simple clerical error by

entering a judgment of conviction only for § 1326(a)(1) & (2), instead of

§ 1326(a)(1), (a)(2), & (b)(2). In the latter case, the sentencing court could


      5
         We also note that the indictment only alleged a violation of 8 U.S.C.
§ 1326(a)(1), (a)(2), & (b)(1). However, the Supreme Court recently held in
Almendarez-Torres v. United States, ___ U.S. ___, 118 S. Ct. 1219, 223-33
(1998), that (b)(1) and (b)(2) only constitute penalty enhancement provisions and
do not constitute additional offenses. Thus, the government is not required to
charge the fact of an earlier conviction in the indictment, and the government's
failure to allege a violation of (b)(2) in the indictment does not require a reversal
of Vasquez-Carrizoza's conviction even though he pled guilty to violating (b)(2).
See id.

                                         -7-
correct the judgment under Federal Rule of Criminal Procedure 36 to reflect the

plea agreement. 6 Therefore, we REVERSE the district court's ruling denying

Vasquez-Carrizoza's § 2255 motion and REMAND for further proceedings not

inconsistent with this opinion.

      The mandate shall issue forthwith.


                                      ENTERED FOR THE COURT,


                                      David M. Ebel
                                      Circuit Judge




      6
         Rule 36 provides, "Clerical mistakes in judgments, orders or other parts
of the record and errors in the record arising from oversight or omission may be
corrected by the court at any time and after such notice, if any, as the court
orders."

                                       -8-
