        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                         United States Court of Appeals

                                   No. 18-40088                   Fifth Circuit

                                                                FILED
                                                         February 21, 2019
UNITED STATES OF AMERICA,                                  Lyle W. Cayce
                                                                Clerk
            Plaintiff - Appellee

v.

SAUL GARCIA-SANCHEZ, also known as Enrique Bardales-Montano,

            Defendant - Appellant



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


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellant Saul Garcia-Sanchez appeals his 37-month
sentence of imprisonment following his guilty plea conviction of illegal reentry
after deportation. We affirm.
                       I. Facts & Procedural History
      Garcia-Sanchez is a citizen of El Salvador not authorized to live in the
United States. He was apprehended by Customs and Border Protection agents
in Texas in July 2017. Prior to this incident, Garcia-Sanchez had been deported
on six different occasions between 2000 and 2017 and was also convicted of
illegal reentry as a previously removed alien in July of 2007. He also has a
history of committing non-immigration related crimes in the United States.
                                      No. 18-40088
       In October of 2017, Garcia-Sanchez pled guilty to one count of illegal
reentry following deportation. The presentence report (PSR) assessed a four-
level enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(D) because Garcia-
Sanchez was convicted of “any other felony offense (other than an illegal
reentry offense)” after he was first ordered deported or removed from the
United States. The enhancement was based on a prior 2011 felony conviction
for second degree commercial burglary in the Superior Court of California for
the County of Ventura, Case No. 2011024399. After re-classification of his
three convictions from that case, the PSR provided that Garcia-Sanchez was
actually convicted of two felonies: burglary (Count Two) and second degree
commercial burglary (Count Three). 1 He was initially sentenced to 36 months
of probation with 365 days of custody as to both felony counts but on December
6, 2012, the sentences were modified to concurrent terms of 16 months of
imprisonment on each count. Then on June 12, 2013, the sentences were again
amended to consecutive terms of 16 months of imprisonment on Count Two
and eight months of imprisonment on Count Three, for a total of 24 months of
imprisonment.
       Here, because the aggregate total sentence imposed for the two prior
felonies was two years or more, the probation officer reasoned that, pursuant
to § 2L1.2(b)(3)(B), an eight-level enhancement was warranted. Garcia-
Sanchez objected to the enhancement at sentencing. He argued that because
the convictions were for different counts and the sentences were ordered to run




       1  As to Case No. 2011024399, the PSR provided that although Garcia-Sanchez was
initially convicted of three counts of second degree commercial burglary, Counts Two and
Four were reclassified as misdemeanor burglaries on March 27, 2017. Then, prior to
sentencing, the probation officer issued a supplemental addendum to the PSR explaining
that, upon further review, Garcia-Sanchez’s burglary conviction in Count Two constituted a
felony offense. Consequently, Garcia-Sanchez was convicted of two felonies in that case: (1)
burglary (Count Two) and (2) second degree commercial burglary (Count Three).
                                             2
                                      No. 18-40088
consecutively, the enhancement should have been based on the greatest single
sentence, i.e., 16 months of imprisonment, rather than the aggregate sentence
for both felonies of 24 months. The probation officer explained that because
there was no intervening arrest, Garcia-Sanchez’s consecutive sentences were
added together and treated as a single sentence. The probation officer also
noted that she had contacted the Sentencing Commission and confirmed that
the   eight-level   enhancement        applied.   Garcia-Sanchez     challenged    the
application   of    § 4A1.2(a)(2)’s    “single    sentence   rule”   to   offense-level
enhancements under § 2L1.2(b)(3), arguing that the rule was limited to the
calculation of a defendant’s criminal history points.
      The district court overruled Garcia-Sanchez’s objection. Garcia-
Sanchez’s total offense level of 17, combined with his criminal history category
of IV, resulted in a Guidelines imprisonment range of 37 to 46 months. The
district court sentenced him at the bottom of that range to 37 months of
imprisonment and issued a $100 special assessment. This appeal ensued.
                             II. Standard of Review
      Garcia-Sanchez objected to the § 2L1.2(b)(3)(B) enhancement at
sentencing so “[we] review the district court’s interpretation and application of
the sentencing guidelines de novo and its findings of fact for clear error.” See
United States v. Martinez-Lugo, 782 F.3d 198, 201 (5th Cir. 2015) (citation
omitted).
                                  III. Discussion
      On appeal, Garcia-Sanchez argues that the district court erred in
assessing the 8-level enhancement under § 2L1.2(b)(3)(B). More specifically, he
contends that the district court erroneously applied the § 2L1.2(b)(3)(B)
enhancement after aggregating his prior sentences resulting from his two prior
California felony convictions—16 months for Count Two plus 8 months for
Count Three—rather than using the greatest single sentence imposed for his
                                           3
                                   No. 18-40088
highest prior individual felony offense—16 months for Count Two. The
government responds that the district court properly aggregated Garcia-
Sanchez’s sentences for his two prior felony convictions under the single
sentence rule of U.S.S.G. § 4A1.2(a)(2), thereby warranting the 8-level
enhancement.
      At oral argument, the government raised the issue of the effect of
Amendment 802 to § 2L1.2 of the Guidelines and Garcia-Sanchez was afforded
an opportunity to respond at that time. U.S.S.G. § 2L1.2, Amend. 802
(Supplement to Appendix C (November 1, 2016)). Thereafter, in response to
this court’s directive, the parties submitted post-oral argument supplemental
letter briefs discussing the implications of Amendment 802 to U.S.S.G. § 2L1.2.
Considering the parties’ responses, the applicable case law, and the record
evidence, we now turn to the issue on appeal—whether the single sentence rule
of § 4A1.2(a)(2) applies to offense-level enhancements under § 2L1.2(b)(3).
      U.S.S.G. § 2L1.2(b)(3) provides:
            (Apply the Greatest) If, at any time after the defendant
            was ordered deported or ordered removed from the
            United States for the first time, the defendant engaged
            in criminal conduct resulting in—

            (A) a conviction for a felony offense (other than an
            illegal reentry offense) for which the sentence imposed
            was five years or more, increase by 10 levels;

            (B) a conviction for a felony offense (other than
            an illegal reentry offense) for which the
            sentence imposed was two years or more,
            increase by 8 levels;

            (C) a conviction for a felony offense (other than
            an illegal reentry offense) for which the
            sentence imposed exceeded one year and one
            month, increase by 6 levels;

                                         4
                                 No. 18-40088
            (D) a conviction for any other felony offense (other
            than an illegal reentry offense), increase by 4 levels; or

            (E) three or more convictions for misdemeanors that
            are crimes of violence or drug trafficking offenses,
            increase by 2 levels.

Id. (emphasis added). The commentary to § 2L1.2 states that “sentence
imposed” has the same meaning as “sentence of imprisonment” in Application
Note 2 and subsection (b) of § 4A1.2. See U.S.S.G. § 2L1.2 cmt. n.2. In turn, §
4A1.2(b)(1) states that the term “sentence of imprisonment” means a sentence
of incarceration and refers to the maximum sentence imposed. Application
Note 2 to § 4A1.2 provides that “[t]o qualify as a sentence of imprisonment, the
defendant must have actually served a period of imprisonment on such
sentence.” We observe that Application Note 2 specifically cross-references §
4A1.2(a)(3) & (b)(1)-(2) and § 4A1.1(a),(b),(c) but does not specifically cross-
reference the single sentence rule in § 4A1.2(a)(2). The single sentence rule in
§ 4A1.2(a)(2) provides:
            If the defendant has multiple prior sentences,
            determine whether those sentences are counted
            separately or treated as a single sentence. Prior
            sentences always are counted separately if the
            sentences were imposed for offenses that were
            separated by an intervening arrest (i.e., the defendant
            is arrested for the first offense prior to committing the
            second offense). If there is no intervening arrest, prior
            sentences are counted separately unless (A) the
            sentences resulted from offenses contained in the
            same charging instrument; or (B) the sentences were
            imposed on the same day. Treat any prior sentence
            covered by (A) or (B) as a single sentence. See also §
            4A1.1(e).

            For purposes of applying § 4A1.1(a), (b), and (c),
            if prior sentences are treated as a single
            sentence, use the longest sentence of
                                        5
                                 No. 18-40088
            imprisonment if concurrent sentences were
            imposed. If consecutive sentences were
            imposed, use the aggregate sentence of
            imprisonment.

Id. (emphasis added). The primary dispute in this appeal is whether the
district court properly applied the single sentence rule of § 4A1.2(a)(2) to
Garcia-Sanchez’s prior California felony convictions resulting in an 8-level
enhancement under § 2L1.2(b)(3)(B). Garcia-Sanchez argues that the district
court should not have aggregated the two felony sentences and instead should
have used the longest of the two which would have resulted in a 6-level
enhancement under § 2L1.2(b)(3)(C). The government argues that the district
court’s use of the § 4A1.2(a)(2) single sentence rule to aggregate Garcia-
Sanchez’s prior felony sentences was correct, thereby warranting the 8-level
enhancement under § 2L1.2(b)(3)(B). We agree for several reasons.
      There is little controlling case law in this circuit on whether the single
sentence rule in § 4A1.2(a)(2) applies to a sentencing court’s application of
offense-level enhancements under § 2L1.2(b)(3) so we begin by reviewing the
cases that do speak to this issue. In United States v. Ponce-Flores, 900 F.3d
215, 216–17 (5th Cir. 2018), this court dealt with a factual and procedural
background similar to those set forth herein, except that the standard of review
in Ponce-Flores was plain-error whereas here, we are conducting a de novo
review of the district court’s application of the Guidelines. See Martinez-Lugo,
782 F.3d at 201. In Ponce-Flores’s case, his three sentences were imposed on
the same day and resulted from offenses listed in the same charging
instrument. Id. at 216. Ponce-Flores’s two-year and four-year sentences were
to be served concurrently while his one-year and four-year sentences were to
be served consecutively. Id. The district judge aggregated the one-year and
four-year consecutive sentences under § 4A1.2(a)(2)’s single sentence rule and

                                       6
                                 No. 18-40088
assessed a 10-level enhancement under § 2L1.2(b)(2)(A). Id. at 217. The issue
in Ponce-Flores was whether the district court plainly erred when it applied
the enhancement after aggregating Ponce-Flores’s prior felony sentences
under § 4A1.2(a)(2)’s single sentence rule. Id. at 216. We concluded that the
district court did not plainly err, based on “the absence of binding precedent,
the lack of an uncomplicated resolution based on the language of the
Guidelines, and the persuasive authority from the Fourth Circuit [in Martinez-
Varela, 531 F.3d 298 (4th Cir. 2008)]. Id. at 219.
      As we did in Ponce-Flores, we again find the Fourth Circuit’s opinion in
Martinez-Varela instructive here. In that case, the sentencing court applied a
16-level enhancement under a prior version of the Guidelines after aggregating
the defendant’s three prior drug trafficking sentences under the single
sentence rule. See 531 F.3d at 298–99; U.S.S.G. §§ 4A1.2(a)(2); 2L1.2(b)(1).
Reviewing for abuse of discretion, id. at 299, the Fourth Circuit affirmed,
explaining as follows:
            While the cross-referenced provisions do not
            address aggregation, § 4A1.1’s Commentary
            states that “[t]he definitions and instructions in
            § 4A1.2 govern the computation of the criminal
            history points. Therefore, §§ 4A1.1 and 4A1.2
            must be read together.” This Commentary provides
            us with strong evidence that these two provisions
            should be read together in determining [the
            defendant’s] criminal history points. Thus, based on
            the instructions from the guidelines themselves,
            guidance from the relevant provisions in question, and
            the lack of any persuasive or direct precedent to the
            contrary, we conclude that the district court properly
            aggregated [the defendant’s] sentences.

Id. at 301–02 (emphasis added). The Fourth Circuit’s holding appears to be
supported by § 2L1.2 Application Note 2’s cross-reference to § 4A1.1. To clarify,
if §§ 4A1.1 and 4A1.2 must be read together, and § 2L1.2 cross-references §
                                       7
                                       No. 18-40088
4A1.1, then 4A1.2 is implicitly included in that cross-reference. 2 The result
from this inclusion is that § 4A1.2(a)(2)’s single sentence rule is applicable to
offense-level enhancements analyzed under § 2L1.2(b)(3). We find the Fourth
Circuit’s reasoning in Martinez-Varela persuasive. We acknowledge that
Chapter Four of the Guidelines addresses criminal history rules whereas here,
we are reviewing offense-level enhancements under § 2L1.2. We are not
persuaded, however, that the Chapter Four criminal history rules should not
guide the calculation of offense-level enhancements under § 2L1.2(b)(3).
       Amendment 802 to U.S.S.G. § 2L1.2 becomes enlightening at this point.
U.S.S.G. § 2L1.2, Amend. 802 (Supplement to Appendix C (November 1, 2016)).
Amendment 802’s section titled “Reason for Amendment,” subsection
“Accounting for Other Prior Convictions,” states in part that:
              The Commission concluded that the length of sentence
              imposed by a sentencing court is a strong indicator of
              the court’s assessment of the seriousness of the
              predicate offense at the time, and this approach is
              consistent with how criminal history is generally
              scored in the Chapter Four of the Guidelines Manual.

                                         ...

              The Commission determined that a sentence-imposed
              approach is consistent with the Chapter Four criminal
              history rules, easily applied, and appropriately
              calibrated to account for the seriousness of prior
              offenses.

Id. at 157–58. Later, the Amendment contains a section titled “Excluding Stale
Convictions” which states that:
              For all three specific offense characteristics, the
              amendment considers prior convictions only if the


       2 This conclusion is further underscored by the fact that Application Note 2 of § 2L1.2
also cross-references parts of § 4A1.2.
                                               8
                                    No. 18-40088
             convictions receive criminal history points under the
             rules in Chapter Four. Counting only convictions that
             receive criminal history points addresses concerns
             that the existing guideline sometimes has provided for
             an unduly severe enhancement based on a single
             offense so old it did not receive criminal history points.
             The Commission’s research has found that a
             defendant’s criminal history score is a strong
             indicator of recidivism risk, and it is therefore
             appropriate to employ the criminal history rules
             in this context. See U.S. Sent. Comm’n, Recidivism
             Among Federal Offenders: A Comprehensive
             Overview (2016). The limitation to offenses
             receiving criminal history points also promotes
             ease of application and uniformity throughout
             the guidelines. See 28 U.S.C. § 994(c)(2) (directing
             the Commission to establish categories of offenses
             based on appropriate mitigating and aggravating
             factors); cf. USSG §2K2.1, comment. (n.10) (imposing
             enhancements based on a defendant’s predicate
             convictions only if they received criminal history
             points).

Id. at 159 (emphasis added). 3 The language in these sections supports the
Fourth Circuit’s determination that Chapter 4’s criminal history rules are
properly used to guide the calculation of offense-level enhancements under §
2L1.2(b)(3). This conclusion is further bolstered by the Guidelines’ own
acknowledgment that they are to “be applied as a ‘cohesive and integrated
whole’ rather than in a piecemeal fashion.” U.S.S.G. § 1B.11, background (U.S.
SENTENCING COMM’N 2004) (citing United States v. Stephenson, 921 F.2d 438
(2d Cir. 1990)).
      For these reasons, we hold that the district court did not err in applying
the single sentence rule of § 4A1.2(a)(2) to aggregate Garcia-Sanchez’s prior



      3 Amendment 802 also features a section titled “Application of the ‘Single Sentence
Rule.” Unfortunately, it is not instructive as to the issue on appeal here. Id. at 159.
                                           9
                                No. 18-40088
felony convictions. Consequently, the district court’s assessment of an 8-level
enhancement under § 2L1.2(b)(3)(B) was warranted.
                               IV. Conclusion
      Garcia-Sanchez’s sentence is affirmed.




                                      10
