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PUBLISH
MAR 25 2003
PATRICK FISHER
Clerk
TENTH CIRCUIT
No. 02-1106
After examining the briefs and appellate record, this three-judge panel
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Accordingly, on January 14, 2003, this court entered an order directing that the
case be submitted without oral argument.
Santiago Castro-Rocha pleaded guilty to illegally reentering the United
States after deportation in violation of 8 U.S.C. 1326. The district court
sentenced him to a fifteen-month prison term, followed by three years of
supervised release. In calculating the appropriate sentence under the 2001
version of the United States Sentencing Guidelines (U.S.S.G.), the district court
increased Castro-Rochas offense level by eight pursuant to U.S.S.G.
2L1.2(b)(1)(C). Over a defense objection, the district court concluded that
Castro-Rocha was subject to the 2001 version of 2L1.2(b)(1)(C) because his
prior Texas state drug conviction constituted an aggravated felony. CastroRocha appeals. This court exercises jurisdiction pursuant to 28 U.S.C. 1291
and 18 U.S.C. 3742(a) and affirms. 1
On January 9, 2003, the United States filed a Motion to Dismiss Appeal
and Vacate Oral Argument (the Motion). In the Motion, the United States
asserted that this appeal was moot because Castro-Rocha had completed his term
of imprisonment. In response to the Motion, this court ordered the parties to file
supplemental briefs addressing the question whether this appeal is moot. In
response, the United States moved to withdraw the Motion. The United States
1
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The facts relevant to the disposition of this appeal are undisputed. CastroRocha is a citizen of the Republic of Mexico. In April of 2001, he was convicted
in Texas state court of possession of a controlled substance and sentenced to a
one-year term of imprisonment (suspended), two years probation, and a $1500
fine. The conviction for simple possession amounted to a felony under Texas
law. Castro-Rocha was deported to Mexico in July of 2001.
recognized that if Castro-Rocha were to prevail on the merits of his claim, his
offense level would decrease from 13 to 10 and his sentencing range would
decrease from 15-21 months imprisonment to 8-14 months imprisonment.
Because, in that circumstance, the district court could choose to impose a term of
imprisonment of less than one year, the district court could also choose to impose
a lesser term of supervised release, or no term of supervised release at all.
Compare U.S.S.G. 5D1.1(a) (providing that a court shall impose a term of
supervised release if it imposes a sentence of imprisonment of more than one
year) and id. 5D1.2(a) (providing that if a term of supervised release is
imposed, the length of the term shall be at least two years but not more than
three years for a defendant convicted of a Class C or D felony), with id.
5D1.1(b) (providing that a court may order a term of supervised release to follow
a term of imprisonment of less than one year). Accordingly, if Castro-Rocha were
to prevail on the merits of this appeal, the district court could grant him effective
relief by either shortening or eliminating his term of supervised release. As noted
by Castro-Rocha in his supplemental brief, and recognized by the United States in
its request to withdraw the Motion, every circuit that has addressed this
circumstance has concluded that the appeal is not moot. See United States v.
Molak, 276 F.3d 45, 48 (1st Cir. 2002); United States v. Verdin, 243 F.3d 1174,
1178 (9th Cir. 2001); Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th Cir. 1995). We
join these circuits and hold that a defendants unexpired term of supervised
release, which could be reduced by a favorable appellate decision, is sufficient to
defeat a claim of mootness. See Steel Co. v. Citizens for a Better Envt, 523 U.S.
83, 95 (1998) ([E]very federal appellate court has a special obligation to satisfy
itself not only of its own jurisdiction, but also that of the lower courts in a cause
under review, even though the parties are prepared to concede it. (quotations
omitted)).
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Cir. 1996), this court held that a state felony conviction for simple possession
constituted an aggravated felony for purposes of the pre-2001 version of
2L1.2. He asserted, however, that the amendments to 2L1.2 adopted on
November 1, 2001, required a reexamination of the question whether a state
felony conviction for simple possession constituted an aggravated felony for
purposes of 2L1.2(b)(1)(C). The district court overruled Castro-Rochas
objection, concluding both that it was bound by Cabrera-Sosa and that it was not
necessary to adopt the definition of aggravated felony advocated by CastroRocha in order to give effect to the November 1, 2001 amendment to 2L1.2.
The sole question in this case is whether the district court erred in
concluding that a state felony conviction for simple possession of a controlled
substance is an aggravated felony for purposes of the 2001 version of U.S.S.G.
2L1.2(b)(1)(C). The district courts interpretation of the sentencing guidelines
is a legal question subject to de novo review. United States v. Holbert, 285 F.3d
1257, 1259 (10th Cir. 2002).
Prior to November 1, 2001, the effective date of the amendments at issue in
this case, 2L1.2(b) provided as follows:
(1) If the defendant previously was deported after a criminal
conviction, or if the defendant unlawfully remained in the United
States following a removal order issued after a criminal conviction,
increase [the base offense level] as follows (if more than one applies,
use the greater):
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(B)
(C)
(D)
(E)
(9th Cir. 2000). Application note 1 states that its definition of drug
trafficking offense applies to all of subsection (b)(1). U.S.S.G.
2L1.2, cmt. n.1. Under that application note, simple possession is
not a drug-trafficking offense. However, application note 2 supplies
a special rule that applies only with respect to subsection (b)(1)(C),
namely, that the definition of aggravated felony is to be determined
by reference to 8 U.S.C. 1101(a)(43). U.S.S.G. 2L1.2, cmt. n.2.
Under that statute, simple possession can be an aggravated felony.
[United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir.
2000)]. Because the application note requiring courts to look to 8
U.S.C. 1101(a)(43) when applying U.S.S.G. 2L1.2(b)(1)(C) is
more specific than the one mandating a general rule for all of
subsection (b)(1), the former takes precedence over the latter.
Finally, application note 2 states that aggravated felony has
the meaning given that term in 8 U.S.C. 1101(a)(43). That
statutory provision defines an aggravated felony as a drug
trafficking crime (as defined in section 924(c) of Title 18).
(Emphasis added.) Section 1101(a)(43) does not state that an
aggravated felony is a drug trafficking offense (as defined in
application note 1 of U.S.S.G. 2L1.2). To accept Defendants
interpretation we would have to ignore the text of the statute, which
requires us to define drug trafficking crime through reference to
924(c) and the statutes it cites.
Soberanes, 318 F.3d at 963-64 (footnotes omitted); see also United States v.
Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002) (same).
We have nothing to add to the Ninth Circuits concise analysis and hereby
adopt it as our own. The decision to carry forward the term aggravated felony,
while retaining the provision of the application notes defining that key term by
reference to 8 U.S.C. 1101(a)(43), makes clear the Sentencing Commission
intended that state felony convictions for simple possession qualify for the eight-
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level enhancement set out in 2L1.2(b)(1)(C). 2 For that reason, the rule of lenity
has no application in this case. See Muscarello v. United States, 524 U.S. 125,
138 (1998) (holding that the rule of lenity applies only if, after seizing
everything from which aid can be derived, . . . we can make no more than a guess
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