934 F.3d 1056

IKUTA, Circuit Judge, dissenting:
Under the plain language of the Guidelines, the district court should have calculated a Guidelines range of 30 to 37 months for Cuevas-Lopez. Instead, the district court applied an unrelated section of the Guidelines to miscalculate a Guidelines range of 37 to 46 months. Because the district court sentenced Cuevas-Lopez to the bottom of the Guidelines range, Cuevas-Lopez was effectively deprived of the chance to get a 30-month sentence, instead of a 37-month sentence. On de novo review, I would apply the Guidelines as written, and therefore I dissent.
I
The factual background is simple. Vicente Cuevas-Lopez, a citizen of Mexico, was deported from the United States in 2004. In 2007, while in the United States illegally, Cuevas-Lopez was convicted in Arizona state court of two counts of second-degree burglary, one for burglarizing a residence and the second for taking power tools from a victim's back yard. On March 10, 2008, he was sentenced to three and a half years on each count.
In 2017, Cuevas-Lopez attempted to reenter the United States illegally in Nogales, Arizona, but was stopped by Border Patrol agents. He later pleaded guilty to attempted illegal reentry after deportation, 8 U.S.C. § 1326.
In calculating the Guidelines range, the district court applied a ten-level sentencing enhancement. Such an enhancement applies only to a defendant who engaged in conduct that resulted in a conviction for a felony offense for which the sentence imposed was five years of imprisonment or more. U.S.S.G. § 2L1.2(b)(3)(A). Although Cuevas-Lopez had not been convicted of such an offense-the longest sentence imposed on him was three and a half years of imprisonment-the district court added his two sentences for second-degree burglary together, and concluded the ten-level enhancement was applicable. In light of this enhancement, the court calculated a Guidelines range of 37 to 46 months in prison. Under the correct calculation, the Guidelines range would have been 30 to 37 months in prison. See id. § 2L1.2(b)(3)(B). Because the court imposed a sentence at the bottom of the range, there is a chance that Cuevas-Lopez would have been sentenced differently had the district court made the correct calculation. See United States v. Munoz-Camarena , 631 F.3d 1028, 1031 (9th Cir. 2011) (holding that an error in calculating the Guidelines range was not harmless because "had the district court started with the correct Guidelines range of 24 to 30 months, rather than 33 to 41 months, it may have arrived at a different sentence").
Today, the majority affirms the district court's calculations under de novo review. But a straightforward reading of the text of the Guidelines shows that the majority is wrong.
II
A district court must "begin all sentencing proceedings by correctly calculating the applicable Guidelines range." Gall v. United States , 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Failure to correctly calculate "the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing." Munoz-Camarena , 631 F.3d at 1030.
"We interpret the Sentencing Guidelines using the ordinary tools of statutory interpretation." United States v. Martinez , 870 F.3d 1163, 1166 (9th Cir. 2017). "[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States , 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). "As with the interpretation of legal texts generally, our search for the Sentencing Commission's intent will most often begin and end with the text and structure of the Guidelines." United States v. Joey , 845 F.3d 1291, 1297 n.8 (9th Cir. 2017) (cleaned up).
The offense guideline section applicable to Cuevas-Lopez's offense is § 2L1.2 (the "Unlawful Reentry Offense" guideline). To calculate Cuevas-Lopez's offense level, the court must first identify the "Base Offense Level" under the Unlawful Reentry Offense guideline. See U.S.S.G. § 1B1.1(a)(1). In this case, the Unlawful Reentry Offense guideline provides a single Base Offense Level of eight points for violations of 18 U.S.C. § 1326. Id. § 2L1.2(a).
The court should then turn to the "Specific Offense Characteristics" for the Unlawful Reentry Offense, § 2L1.2(b), which sets out the enhancements to the Base Offense Level, id. § 1B1.1(a)(2). Under subsection (3)(A) of the Special Offense Characteristics, the district court must impose a ten-level enhancement if the defendant engaged in criminal conduct that resulted in "a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was five years or more." Id. § 2L1.2(b)(3)(A). Subsection (3)(B) of the Special Offense Characteristics mirrors subsection (3)(A) and requires the district court to impose an eight-level enhancement if the defendant's criminal conduct resulted in "a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more." Id. § 2L1.2(b)(3)(B).
In this case, Cuevas-Lopez's criminal conduct resulted in "a conviction" for second degree burglary for which the sentence imposed was three and a half years. Although Cuevas-Lopez's conduct also resulted in a second conviction for a second degree burglary, the plain text of subsection (3)(A) to the Special Offense Characteristics does not permit a court to aggregate the sentences of multiple convictions. See id. § 2L1.2(b)(3)(A). Rather, subsection (3)(A) distinctly refers in the singular to "a conviction" and "the sentence." Id. Therefore, subsection (3)(B) of the Special Offense Characteristics, which applies to "a conviction for a felony offense ... for which the sentence imposed was two years or more," is the applicable enhancement, and the court should have added only eight levels to Cuevas-Lopez's offense level. Id. § 2L1.2(b)(3)(B).
The commentary to the Unlawful Reentry Offense guideline, § 2L1.2, is consistent with the conclusion that the "sentenced imposed" in this case was a three and a half year sentence, and that the court could not aggregate sentences from multiple convictions. The term "sentence imposed" is defined in Comment 2 to the Unlawful Reentry Offense guideline as having "the same meaning given the term 'sentence of imprisonment' " in "Definition and Instructions for Computing Criminal History," § 4A1.2(b) , and in Application Note 2 to that section, see id. § 2L1.2 cmt. 2. Because the cross-referenced provisions are in Chapter 4, their purpose is to instruct the court on how to calculate the criminal history points associated with each sentence. Id. § 1B1.1(a)(6).
The cross-referenced section and Application Note make clear that the term "sentence of imprisonment" refers to the sentence pronounced by the court on a single conviction. The section in "Definition and Instructions for Computing Criminal History," § 4A1.2(b), states that a sentence of imprisonment "refers to the maximum sentence imposed" and does not include any portion of the sentence that was suspended. Application Note 2 to that section explains that "to qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence." Id. § 4A1.2 cmt. 2. Moreover, in calculating the criminal history points associated with a "sentence of imprisonment," the commentary makes clear that "criminal history points are based on the sentence pronounced, not the length of time actually served." Id. In short, each reference to "sentence of imprisonment" refers to a single sentence. The term "sentence imposed" has "the same meaning given the term 'sentence of imprisonment,' " and it therefore also refers to the sentence pronounced on a single conviction. See id. § 2L1.2 cmt. 2.
Because the language of the Guidelines "is plain and admits of no more than one meaning" our "sole function" is to enforce the terms of the Guidelines pursuant to their plain meaning. Carson Harbor Vill., Ltd. v. Unocal Corp. , 270 F.3d 863, 878 (9th Cir. 2001) (en banc) (quoting Caminetti v. United States , 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917) ). Here, subsection (3)(A)'s ten-level enhancement does not apply to Cuevas-Lopez because he does not have "a conviction for a felony offense ... for which the sentence imposed was five years or more." U.S.S.G. § 2L1.2(b)(3)(A). Although Cuevas-Lopez's conduct resulted in two sentences for three and a half years each, neither sentence is a sentence of "five years or more." Id. Therefore, the enhancement is inapplicable.
III
Instead of applying the language of the Guidelines, the majority relies on complex and roundabout extrapolations to assert that an unrelated section in the Criminal History chapter (Chapter 4) applies to the Unlawful Reentry Offense guideline, § 2L1.2, and requires the district court to add together Cuevas-Lopez's two separate second-degree burglary offenses.
A
The unrelated section on which the majority puts so much weight is referred to as the "Single Sentence Rule." Id. § 4A1.2(a)(2). In calculating a defendant's criminal history, the court must add a specified number of points for each of the defendant's prior sentences. Id. § 1B1.1(a)(2). Chapter 4 defines the term "prior sentence" to mean "any sentence previously imposed upon adjudication of guilt." Id. § 4A1.2(a)(1). The Single Sentence Rule explains that if the defendant "has multiple prior sentences," the court counts them separately if the sentences are separated by an intervening arrest, as when the defendant was arrested for the first offense before committing the second offense. Id. § 4A1.2(a)(2). Prior sentences are counted as a single sentence if there was no intervening arrest and they "resulted from offenses contained in the same charging instrument" or "the sentences were imposed on the same day." Id.
The majority concludes that a court must read the term "sentenced imposed" in subsection (3)(A) of the Unlawful Reentry Offense guidelines to mean the same as the term "prior sentence" in the Single Sentence Rule. Maj. Op. 1064. Therefore, according to the majority, under subsection (3)(A) of Unlawful Reentry Offense Guidelines, Cuevas-Lopez's two convictions for second-degree burglary should be counted as a single conviction, and the two separate three and a half year sentences imposed for each convicted should be counted as a single sentence for "five years or more." Maj. Op. 1064.
Notably lacking from the majority's analysis is a single word, phrase, or cross-reference in the Guidelines that would authorize a court to apply the Single Sentence Rule in the context of the Unlawful Reentry Offense guidelines. Nor is there any provision in the Guidelines which suggests the term "sentence imposed" has the same meaning as "prior sentence." See Burgess v. United States , 553 U.S. 124, 130, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) ("As a rule, [a] definition which declares what a term 'means' ... excludes any meaning that is not stated." (quoting Colautti v. Franklin , 439 U.S. 379, 392-393 n.10, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) ). Therefore, to reach this conclusion, the majority lets loose an entire quiver of strained arguments, none of which hits the mark.
First, the majority brushes aside Cuevas-Lopez's textual argument (i.e., that nothing in subsection (3)(A) of the Unlawful Reentry Offense guidelines incorporates the Single Sentence Rule's definition of "prior sentence") on the specious ground that subsection (3)(A) does not expressly say that the Single Sentence Rule is not applicable. See Maj. Op. 1064 (noting that subsection (3)(A) is "simply being silent" on that question). This is meritless. If a Guidelines section uses a defined term (here, "sentenced imposed") that does not cross-reference a different defined term in a different section (here, "prior sentence"), the natural inference is that the definition of the unrelated term is not applicable. See Burgess , 553 U.S. at 130, 128 S.Ct. 1572 ; Lamie v. U.S. Trustee , 540 U.S. 526, 539, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (holding that courts should not add an "absent word" to a statute).
But the majority has more arguments up its sleeve. According to the majority, Application Note 3 to the Unlawful Reentry Offense guidelines , "evince[s] the Sentencing Commission's intent that the single sentence rule apply" to subsection (3)(A). Maj. Op. 1064. The majority's reasoning is difficult to follow. The majority notes that Application Note 3 to the Unlawful Reentry Offense guideline explains which convictions qualify as "a conviction for a felony offense ... for which the sentence imposed" was a specified length of time. U.S.S.G. § 2L1.2(b)(3)(A) ; Maj. Op. 1064-65. According to Application Note 3, the court should count only a conviction that received criminal history points pursuant to the "Criminal History Category" guideline, §§ 4A1.1(a), (b) and (c). Id. § 2L1.2 cmt. 3. These "Criminal History Category" guideline subsections tell a court to add a specified number of criminal history points for each "prior sentence of imprisonment," depending on the sentence's length. Id. §§ 4A1.1(a), (b), & (c). The majority then jumps to a different subsection of the "Criminal History Category" guideline, § 4A1.1(e), Maj. Op. 1064-65, which is not mentioned in Application Note 3, id. § 2L1.2 cmt. 3. This (unmentioned) subsection- § 4A1.1(e) -directs a court to add a point for any prior sentence resulting from a conviction of a crime of violence that did not receive a point under the "Criminal History Category" guideline, §§ 4A1.1(a), (b) and (c), "because such a sentence was treated as a single sentence," id. § 4A1.1(e). According to the majority, the language in this subsection of the Criminal History Category guidelines, § 4A1.1(e) (although not mentioned in Application Note 3), shows that the Single Sentence Rule is incorporated into determining whether a defendant's criminal conduct resulted in "a conviction" for an offense "for which the sentence imposed" was five years or more under subsection (3)(A) of the Unlawful Reentry Offense guidelines. Maj. Op. 1064-65.
This attenuated reasoning for discerning the Sentencing Commission's intent is groundless. "[T]he primary touchstone for discovering that intent is the text of the Guidelines manual" itself. Joey , 845 F.3d at 1297. On its face, the instruction under the subsection of the "Criminal History Category" guideline, § 4A1.1(e) (i.e., that a court should add a point for any prior sentence resulting from a conviction of a crime of violence that did not receive a point because it was treated as a single sentence), is completely irrelevant to the question before us. See U.S.S.G. § 4A1.1(e). At a minimum, this instruction about treatment of aggregated sentences for crimes of violence does not direct a court to consider Cuevas-Lopez's two convictions and sentences for second degree burglary as "a conviction" for which a single, seven-year sentence was imposed. See id. There is nothing in this unrelated guideline section that could override the plain text of subsection 3(A), the applicable Unlawful Reentry Offense guideline.
One more example of the majority's selective tour through the Guidelines will suffice. Application Note 3 to the Unlawful Reentry Offense guidelines also explains that if the defendant has prior convictions for multiple misdemeanors , the court should count only those convictions that would be counted separately under the Single Sentence Rule. Maj. Op. 1064-65. The majority argues that this portion of Application Note 3 "suggests" that a court should apply the Single Sentence Rule if a defendant has prior convictions for multiple felonies under subsection (3)(A). Maj. Op. 1064-65. But of course, the language from Application Note 3 raises exactly the opposite inference: the Sentencing Commission knew how to instruct a court to consider the Single Sentence Rule for multiple misdemeanors, and did not do so for felony counts described in subsection (3)(A). See, e.g. , Whitfield v. United States , 543 U.S. 209, 216, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005) ("Congress has included an express overt-act requirement in at least 22 other current conspiracy statutes, clearly demonstrating that it knows how to impose such a requirement when it wishes to do so.").
The majority's remaining catalog of textual arguments based on irrelevant Guidelines sections are equally unsupported, and merit no further discussion here.
B
The majority's arguments based on the Amendment to Section 2L1.2 fare no better. Maj. Op. 1065-67.
Prior to the 2016 amendments, § 2L1.2(b) defined the Special Offense Characteristics enhancements by reference to federal generic offenses. See U.S.S.G. § 2L1.2 (2015). For instance, the Specific Offense subsection required the imposition of an enhancement for defendants who previously had been convicted of a specified drug trafficking offense, crime of violence, firearms offense and the like. Id. § 2L1.2(b)(1)(A) (2015). In order to determine whether a prior conviction qualified as one of these categories, the court was required to use the categorical approach set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and its progeny. See U.S.S.G. § 2L1.2 (2015). Courts complained that applying this categorical approach was "overly complex and resource-intensive." U.S.S.G. Supp. to 5 app. C, amend. 802, at 155 (Nov. 1, 2016). Consequently, in 2016, the Sentencing Commission decided to apply "a much simpler sentence-imposed model" in which "[t]he level of the sentencing enhancement for a prior conviction generally will be determined by the length of the sentence imposed for the prior offense." Id. It also noted 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." Id. at 157.
The majority argues that because the Amendment states that the new approach for accounting for prior convictions was "similar to how Chapter Four of the Guidelines Manual determines a defendant's criminal history score based on his or her prior convictions," id. at 155-56, the Sentencing Commission must have intended to incorporate Chapter 4's Single Sentence Rule into the Unlawful Reentry Offense guideline, Maj. Op. at 1065-66. Like the majority's other arguments, this one too is meritless. First, the Amendment's brief references to Chapter Four of the Guidelines cannot override the plain language of the Guidelines text. Stinson , 508 U.S. at 38, 113 S.Ct. 1913 (holding that Guidelines commentary is not authoritative if it is inconsistent with the guideline itself). But here, there is no inconsistency between the Amendment and the Guidelines, because the Amendment does not even reference the Single Sentence Rule, and there is thus no basis for concluding the rule is incorporated in the Unlawful Reentry Offense guideline. See U.S.S.G. Supp. to 5 app. C, amend. 802, at 155-57 (Nov. 1, 2016).
Moreover, even if it were proper to stray from the text of the Guidelines, the reasoning expressed in the Amendment is more consistent with the conclusion that courts should not apply the Single Sentence Rule when determining the Special Offense Characteristics under the Unlawful Reentry Offense guidelines. Id. The Commission explained that it used the "the length of sentence imposed" because the length of a sentence "is a strong indicator of the court's assessment of the seriousness of the predicate offense." Id. at 157. In other words, the length of the sentence serves as a proxy for the seriousness of the crime. But if that was the Commission's intent, then it is illogical to aggregate crimes. Plainly, two second-degree burglaries which each receive three-year sentences are not as serious as, for example, an armed robbery which results in a six-year sentence. Thus, to the extent that the Amendments are relevant, they support the same outcome.
***
Under the plain language of the Guidelines, Cuevas-Lopez does not have "a conviction for a felony offense ... for which the sentence imposed was five years or more." U.S.S.G. § 2L1.2. This "language is plain and admits of no more than one meaning," and therefore, our "sole function" is to enforce the terms of the Guidelines pursuant to their plain meaning. Carson Harbor Vill., Ltd. , 270 F.3d at 878. Here the majority concedes there is no "grievous ambiguity or uncertainty" in the Guidelines here, Maj. Op. 1068 n.14, but nevertheless declines to give Cuevas-Lopez the benefit of the Guidelines' plain language. Because we should not increase the applicable Guidelines range based solely on inferences regarding the Sentencing Commission's unspoken intent, Cuevas-Lopez is entitled to a Guidelines range of 30 to 37 months, rather than the 37 to 46 months range erroneously calculated by the district court. I dissent.
Because Cuevas-Lopez was sentenced in 2016, all references to the Guidelines refer to the 2016 version of the Guidelines, unless otherwise stated. See U.S.S.G. § 1B1.11.
Section 2L1.2(b)(3)(A) provides:
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 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.
Section 2L1.2(b)(3)(B) provides:
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 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.
Application Note 2 to § 2L1.2 provides:
"Sentence imposed" has the meaning given the term "sentence of imprisonment" in Application Note 2 and subsection (b) of § 4A1.2 (Definitions and Instructions for Computing Criminal History). The length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release.
Section 4A1.2(b) defines "sentence of imprisonment." It provides:
(1) The term "sentence of imprisonment" means a sentence of incarceration and refers to the maximum sentence imposed.
(2) If part of a sentence of imprisonment was suspended, "sentence of imprisonment" refers only to the portion that was not suspended.
Application Note 2 to § 4A1.2 provides:
Sentence of Imprisonment.-To qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence (or, if the defendant escaped, would have served time). See § 4A1.2(a)(3) and (b)(2). For the purposes of applying § 4A1.1(a), (b), or (c), the length of a sentence of imprisonment is the stated maximum (e.g., in the case of a determinate sentence of five years, the stated maximum is five years; in the case of an indeterminate sentence of one to five years, the stated maximum is five years; in the case of an indeterminate sentence for a term not to exceed five years, the stated maximum is five years; in the case of an indeterminate sentence for a term not to exceed the defendant's twenty-first birthday, the stated maximum is the amount of time in pre-trial detention plus the amount of time between the date of sentence and the defendant's twenty-first birthday). That is, criminal history points are based on the sentence pronounced, not the length of time actually served. See § 4A1.2(b)(1) and (2). A sentence of probation is to be treated as a sentence under § 4A1.1(c) unless a condition of probation requiring imprisonment of at least sixty days was imposed.
Section 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 imprisonment if concurrent sentences were imposed. If consecutive sentences were imposed, use the aggregate sentence of imprisonment.
Application Note 3 to § 2L1.2 provides:
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).
The majority replicates the errors of the Fourth and the Fifth Circuits in United States v. Martinez-Varela , 531 F.3d 298 (4th Cir. 2008) and United States v. Garcia-Sanchez , 916 F.3d 522, 526 (5th Cir. 2019). Maj. Op. 1067-68. Because those cases are also contrary to the plain text of the Guidelines, we should decline to follow them.
The majority asserts that 18 U.S.C. § 3584 (which requires a sentencing court to consider various factors when determining whether prison terms imposed for each offense are to run consecutively or concurrently) supports its argument that the Single Sentence Rule captures the seriousness of a defendant's prior offense, and therefore is a "baseline assumption" underlying the Guidelines. Maj. Op. 1065, 1066-67. Of course, § 3584 provides no guidance on how to interpret the Unlawful Reentry Offense guidelines. Moreover, the court's duty to determine the appropriate total sentence for the defendant under § 3584, see Dean v. United States , --- U.S. ----, 137 S. Ct. 1170, 1175-76, 197 L.Ed.2d 490 (2017), is distinct from the question before us here: whether a single offense is sufficiently serious to warrant an enhancement.

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