UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PEDRO VASQUEZ-CARRIZOZA,

Defendant - Appellant.	No. 97-2291

(D.C. No. CV-97-1022 JC;

CR-96-178 JC)

(United States District Court for the District of New Mexico)

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 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.

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 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). 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 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 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 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