Metropolitan News-Enterprise


Tuesday, December 18, 2001


Page 1


DUI Not ‘Aggravated’ Under Sentencing Law—Ninth Circuit


By a MetNews Staff Writer


Driving while intoxicated isn’t an “aggravated felony,” even where punishable by a prison term under a recidivist statute, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A panel threw out the seven-year sentence imposed on Mario Portillo-Mendoza, who was convicted in the U.S. District Court of the District of Arizona of illegal reentry following deportation. The case was sent back to Judge Stephen M. McNamee for resentencing, and is likely to result in a reduced term of 30 months or less—most of which has already been served.

Portillo was arrested last year after illegally crossing the border near Yuma, Ariz. He admitted that he had been deported after a prior illegal entry, and pled guilty.

Illegal reentry normally results in a sentence of no more than two years under the federal guidelines, generally cut to 18 months if the defendant admits responsibility. But prosecutors sought an enhanced sentence for Portillo based on his prior criminal record.

Portillo, who apparently crossed the border several times over the years, was convicted of drunk driving in California five times between 1994 and 1999. The last conviction was for a felony under the recidivist statute, Vehicle Code Sec. 23530.

He was sent to prison for that conviction, was returned to Mexico upon his release, and crossed the border again within a month.

McNamee ruled that a felony violation under the drunk-driving statute qualified as an aggravated felony under the guidelines and enhanced the sentence to seven years. Had the prior been characterized as a simple felony, the enhanced sentence would have been no more than 30 months.

Senior Judge Warren Ferguson, writing for the appeals court, noted that another Ninth Circuit panel recently ruled that drunk driving and causing injury is not an aggravated felony.

Under the guidelines, the appeal jurist explained, an aggravated felony is a crime which is punishable by more than a year in custody and involves “physical force.” There can be no physical force without a volitional act, Ferguson reasoned, and nothing in the drunk driving statute, he said, requires such an act.

“A conviction for DUI, whether with priors or not, contains no intent requirement in California law; a violation may occur through negligence,” he explained. Treating the prior conviction as an aggravated felony was plain error, the judge said, mandating reversal even though the issue wasn’t raised in the appellant’s brief.

Judges Harry Pregerson and Michael Daly Hawkins concurred in the opinion.

The case is United States v. Portillo-Mendoza, 00-10407.


Copyright 2001, Metropolitan News Company