UNITED STATES of America, Plaintiff-Appellee, v. Vicente CUEVAS-LOPEZ, aka Vicente Cuevas Lopez, Defendant-Appellant., 934 F.3d 1056

FRIEDLAND, Circuit Judge: Defendant-Appellant Vicente Cuevas-Lopez pleaded guilty to attempted illegal reentry after deportation in violation of 8 U.S.C. § 1326. In determining Cuevas-Lopez's sentence, the district court applied a ten-level enhancement to his base offense level pursuant to United States Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines Manual") § 2L1.2(b)(3)(A) ("the Enhancement"), as had been recommended by the Pre-Sentence Report.

The Enhancement applies to a defendant charged under 8 U.S.C. § 1326 who was previously ordered deported or removed and who subsequently committed "a felony offense ... for which the sentence imposed was five years or more." U.S.S.G. § 2L1.2(b)(3)(A). A state court had previously sentenced Cuevas-Lopez to two consecutive 3.5-year terms imposed on the same day for two second-degree burglary convictions.

The district court aggregated Cuevas-Lopez's two 3.5-year sentences to produce a seven-year sentence for purposes of applying the Enhancement, relying on § 4A1.2(a)(2) of the Guidelines Manual, which is known as the "single sentence rule." Cuevas-Lopez, who did not object at sentencing, now argues that the district court erred in adhering to the single sentence rule and thus in aggregating the two sentences when considering what level of enhancement to apply.

We affirm, joining the Fifth Circuit in holding that the single sentence rule in § 4A1.2(a)(2) governs the determination whether an enhancement applies under § 2L1.2(b). I. A. The Sentencing Reform Act of 1984 established "factors to guide [federal] district courts in exercising their traditional sentencing discretion." Beckles v. United States , --- U.S. ----, 137 S. Ct. 886, 893, 197 L.Ed.2d 145 (2017). Congress simultaneously "created the United States Sentencing Commission and charged it with establishing guidelines to be used for sentencing." Id.

Although "[t]he Guidelines were initially binding on district courts," the Supreme Court in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), "rendered them 'effectively advisory.' " Beckles , 137 S. Ct. at 894 (quoting Booker , 543 U.S. at 245, 125 S.Ct. 738 ). The Guidelines Manual is nonetheless " 'the starting point and the initial benchmark' for sentencing." Id. (quoting Gall v. United States , 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ).

The Guidelines Manual provides sentencing ranges determined by a combination of "the seriousness of a defendant's offense ... and his [or her] criminal history." Molina-Martinez v. United States , --- U.S. ----, 136 S. Ct. 1338, 1342, 194 L.Ed.2d 444 (2016). The offense seriousness is reflected in an "offense level" comprised of a base offense level, which is assigned by the Guidelines Manual to each type of conviction; specific offense characteristics, which can increase or decrease the offense level for each offense; and upward and downward adjustments, which can be applied to any offense.

See U.S.S.G. § 1B1.1(a)(1)-(5). A defendant is assigned criminal history points based on his or her past criminal conduct, which then places the defendant in a criminal history category between I and VI. See U.S.S.G. § 4A1.1 ; U.S.S.G. ch. 5, pt. A, Sentencing Table. The Guidelines Manual combines this criminal history category with a defendant's calculated offense level to produce a recommended sentencing range. U.S.S.G. ch. 5, pt. A, Sentencing Table. B. Cuevas-Lopez, who is a citizen of Mexico, was ordered deported from the United States in 2004, and was deported several times between 2004 and 2015.

He unsuccessfully attempted to reenter the country in 2017. He was then charged with attempted illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a), as enhanced by 8 U.S.C. § 1326(b)(1). Cuevas-Lopez pled guilty to the charge, and the district court held a sentencing hearing in October 2017. In advance of the hearing, the U.S. Probation Office prepared a Pre-Sentence Report ("PSR"). Applying § 2L1.2(a), the relevant offense guideline for illegal reentry offenses, the PSR recommended a base offense level of eight for a violation of 8 U.S.C. § 1326.

With regard to specific offense characteristics, the PSR added a ten-level enhancement pursuant to § 2L1.2(b)(3)(

A) based on the fact that "[a]fter [Cuevas-Lopez] was first ordered deported or removed from the United States, he sustained a felony conviction for which the sentences imposed in a two-count indictment were ordered to run consecutive," and which "resulted in a cumulative sentence that was five years or more." The ten-level enhancement arose out of Cuevas-Lopez's November 3, 2007 arrest for two felony burglaries. The first burglary was reported on November 1, 2007, and the second was committed on November 3, 2007.

Cuevas-Lopez was convicted of both burglaries, and on March 10, 2008 an Arizona state court sentenced him to 3.5 years in prison for each offense, ordered to run consecutively. The PSR applied the single sentence rule to treat Cuevas-Lopez's two consecutive 3.5-year sentences as a single seven-year sentence. This aggregated seven-year sentence triggered the ten-level enhancement under § 2L1.2(b)(3)(A) (again, the "Enhancement"), so the PSR assigned Cuevas-Lopez an adjusted offense level of 18 for the instant illegal reentry offense.

It then applied a three-level downward adjustment for acceptance of responsibility, resulting in an offense level of 15. The PSR placed Cuevas-Lopez in criminal history category V based on the two burglaries discussed above and other convictions between 2006 and 2008. Cuevas-Lopez's criminal history category and offense level resulted in a Guidelines range of 37 to 46 months in prison. Without aggregating Cuevas-Lopez's two burglary sentences, § 2L1.2(b)(3)(

B) would have called for an eight-level enhancement based on a 3.5-year sentence, which would have resulted in an offense level of 13 after the downward adjustment and a Guidelines range of 30 to 37 months. See U.S.S.G. ch. 5, pt. A, Sentencing Table. At the sentencing hearing, the Government agreed with the PSR's recommendation and argued, based on the § 2L1.2(b)(3)(

A) Enhancement, that Cuevas-Lopez's base offense level of eight was "properly enhanced by ten levels because the defendant received a seven-year consecutive state sentence ... for two second-degree burglary counts charged in a single indictment." The district court adopted the Guidelines calculation in the PSR, to which Cuevas-Lopez did not object. The court sentenced Cuevas-Lopez to 37 months in prison and three years of supervised release.

Cuevas-Lopez timely appealed and now argues that the single sentence rule does not apply to § 2L1.2(b)(3) enhancements, and that the district court therefore should not have aggregated his two prior 3.5-year sentences for purposes of determining his Guidelines range. II. A. Where, as here, a defendant makes an argument on appeal that was not the basis for an objection in the district court, we generally review for plain error. See United States v. Gomez , 725 F.3d 1121, 1125 (9th Cir. 2013) ("If the defendant fails to object, we review for plain error."); see also Fed. R.

Crim P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). We have held, however, that "we are not limited to [plain error] review when we are presented with a question that 'is purely one of law' and where 'the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.' " United States v. Saavedra-Velazquez , 578 F.3d 1103, 1106 (9th Cir. 2009) (quoting United States v. Echavarria-Escobar , 270 F.3d 1265, 1267-68 (9th Cir. 2001) ).

Cuevas-Lopez urges us to apply de novo review, despite his failure to object in the district court, because his argument about when the single sentence rule applies presents a pure question of law. The Government responds that our court's "pure question of law" exception to plain error review is inconsistent with the Supreme Court's

interpretation of Federal Rule of Criminal Procedure 52(b). In support, the Government cites Puckett v. United States , 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009), in which the Supreme Court held that "[f]ailure to abide by [the] contemporaneous-objection rule ordinarily precludes the raising on appeal of [an] unpreserved claim of trial error," with a "limited exception," id. at 135, 129 S.Ct. 1423, for a "plain error that affects substantial rights," id. (quoting Fed. R. Crim. P. 52(b) ). The Government also relies on Judge Graber's concurrence in United States v. Zhou , 838 F.3d 1007 (9th Cir. 2016), which opined that "[o]ur 'pure question of law' exception contradicts Rule 52(

b) and the Supreme Court's case law." Id. at 1016 (Graber, J., concurring). We need not resolve this dispute or otherwise decide which standard of review applies here, because we would affirm under either de novo or plain error review. For the reasons explained below, we conclude that the district court correctly interpreted the Guidelines Manual in determining that the single sentence rule applies to § 2L1.2(

b) enhancements. B. 1. Although the Guidelines are advisory only, a "district court must correctly calculate the recommended Guidelines sentence and use that recommendation as the 'starting point and the initial benchmark.' " United States v. Munoz-Camarena , 631 F.3d 1028, 1030 (9th Cir. 2011) (quoting Kimbrough v. United States , 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) ). The court must keep the Guidelines range "in mind throughout the process," id. (quoting United States v. Carty , 520 F.3d 984, 991 (9th Cir. 2008) (en banc)), and "justify the extent of [any] departure from the Guidelines," id.

"Failure to calculate the correct Guidelines range constitutes procedural error." Peugh v. United States , 569 U.S. 530, 537, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). As the Supreme Court has explained, the Guidelines Manual "contains text of three varieties," each of which is written by the Sentencing Commission. Stinson v. United States , 508 U.S. 36, 41, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). The "[f]irst is a guideline provision itself," which "provide[s] direction as to the appropriate type [and extent] of punishment." Id.

A "second variety of text in the [Guidelines] Manual is a policy statement ... regarding application of the guidelines or other aspects of sentencing that would further the purposes of the [Sentencing Reform] Act." Id. (quotation marks omitted). The third type of text in the Guidelines Manual is commentary, which accompanies both guidelines and policy statements. Id.

Commentary may serve three functions: to "interpret a guideline or explain how it is to be applied"; to "suggest circumstances which may warrant departure from the guidelines"; and to "provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline." Id. (alterations and citation omitted).

Any modifications or amendments to the guidelines provisions themselves (the first category of text) must be accompanied by a "statement of the reasons therefor" authored by the Sentencing Commission, and take effect on a date set by the Commission, within certain statutory parameters and subject to any changes made by Congress. See 28 U.S.C. § 994(p). "We interpret the Sentencing Guidelines using the ordinary tools of statutory

interpretation." United States v. Martinez , 870 F.3d 1163, 1166 (9th Cir. 2017). Our

interpretation "will most often begin and end with the text and structure of the [g]uidelines" provisions themselves. Id. (quoting United States v. Joey , 845 F.3d 1291, 1297 n.8 (9th Cir. 2017) ). We also consider "the Commission's commentary interpreting or explaining the text" of those guidelines provisions. Id. The commentary "is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson , 508 U.S. at 38, 113 S.Ct. 1913 ; see also United States v.

Prien-Pinto , 917 F.3d 1155, 1157-58 (9th Cir. 2019) (following Stinson ). Policy statements, likewise, are binding "[t]o the extent that they interpret substantive guidelines and do not conflict with them or any statutory directives." United States v. Chea , 231 F.3d 531, 536 n.1 (9th Cir. 2000) (citation omitted); see also Stinson , 508 U.S. at 42, 113 S.Ct. 1913 ("The principle that the Guidelines Manual is binding on federal courts applies as well to policy statements.").

"We may also look to [a] provision's history and purpose, such as by consulting the Commission's statements of reason for a particular amendment." Martinez , 870 F.3d at 1166 (citation and quotation marks omitted); see also United States v. Ornelas , 825 F.3d 548, 554 (9th Cir. 2016) (noting that we "look to the Commission's statements of reason for guidance" in interpreting individual guidelines). 2.

Chapter Two of the Guidelines Manual governs offense conduct. The offense guideline within

Chapter Two applicable to a conviction for attempted illegal reentry is § 2L1.2.

Section 2L1.2(

a) provides a base offense level of eight. Sections 2L1.2(b)(1), (b)(2), and (b)(3), which contain the specific offense characteristics, apply enhancements of between two and ten levels based on a defendant's prior convictions. Some of these enhancements depend on the types of convictions sustained and others depend on the length of sentences received. In § 2L1.2(b)(1), § 2L1.2(b)(2)(E), and § 2L1.2(b)(3)(E), the size of the enhancement turns on the type of offense.

The other subsections in § 2L1.2(b)(2) and § 2L1.2(b)(3), including the Enhancement, add varying levels of enhancement based on the length of a defendant's sentence imposed for prior convictions. Subsection (b)(3), which the district court applied to enhance Cuevas-Lopez's base offense level in this case, provides in full: (3) (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; (

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. U.S.S.G. § 2L1.2(b)(3) (underlining added). Subsection 2L1.2(b)(2) mirrors subsection (b)(3), but relates to a defendant's convictions, if any, sustained before being ordered deported or removed. See § 2L1.2(b)(2). Cuevas-Lopez contends that the words "a conviction" in the Enhancement (underlined above) preclude a district court from aggregating consecutive sentences for purposes of applying the Enhancement.

Although this contention finds some support in the language of § 2L1.2(b)(3), we are persuaded in light of the application notes in the commentary to § 2L1.2, as well as the Sentencing Commission's statement of reasons for the 2016 amendment to § 2L1.2, that the district court properly aggregated Cuevas-Lopez's two 3.5-year sentences here. In aggregating Cuevas-Lopez's two sentences, the district court relied on the single sentence rule. The single sentence rule falls within

Chapter Four of the Guidelines Manual, which contains guidelines for categorizing a defendant's criminal history.

Section 4A1.2(

a) of

Chapter Four defines "prior sentence" as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere , for conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1). The guideline then instructs that whether to treat multiple prior sentences as a single sentence depends on whether they were separated by an intervening arrest, charged in the same instrument, or imposed on the same day.

Specifically, § 4A1.2(a)(2) states: 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). U.S.S.G. § 4A1.2(a)(2).

Section 4A1.2(a)(2) goes on to provide that "if prior sentences are treated as a single sentence," a court should "use the longest sentence of imprisonment if concurrent sentences were imposed" and "use the aggregate sentence of imprisonment" where "consecutive sentences were imposed." U.S.S.G. § 4A1.2(a)(2).

Here, the district court applied a ten-level enhancement based on Cuevas-Lopez's consecutive 3.5-year sentences, rather than an eight-level enhancement, which would have applied had Cuevas-Lopez's two 3.5-year sentences been ordered to run concurrently (or if they had been ordered to run consecutively but the single sentence rule's aggregation provisions did not apply). Our task, therefore, is to determine whether

Chapter Four's single sentence rule properly applies to § 2L1.2. In support of his argument that the single sentence rule's aggregation provisions should not apply here, Cuevas-Lopez relies on § 2L1.2 's commentary-specifically Application Note 2. Application Note 2 to § 2L1.2 gives "sentence imposed" "the meaning given the term 'sentence of imprisonment' in Application Note 2 and subsection (

b) of § 4A1.2." U.S.S.G. § 2L1.2 cmt. n.2. As Cuevas-Lopez points out, this application note to § 2L1.2 does not reference subsection (

a) of § 4A1.2, which defines "prior sentence" and contains the single sentence rule. Cuevas-Lopez argues that because Application Note 2 specifically cross-references a part of § 4A1.2 and yet does not reference the

part containing the single sentence rule, the Commission meant to exclude the single sentence rule from applying to the § 2L1.2(

b) enhancements. In our view, the absence of a mention of subsection (

a) of § 4A1.2 in Application Note 2 to § 2L1.2 does not hold the significance Cuevas-Lopez wishes. Rather, we read § 4A1.2(

b) and Application Note 2 to that section-the two Guidelines Manual components specifically referenced in § 2L1.2 's commentary for purposes of defining "sentence imposed"-as simply being silent on the question whether separate sentences that are imposed on the same day and ordered to run consecutively should be aggregated for purposes of applying the Enhancement. Other application notes to the offense guideline in which the Enhancement appears, however, speak more to the issue and evince the Sentencing Commission's intent that the single sentence rule apply to § 2L1.2(b).

One example is Application Note 3 to the § 2L1.2 offense guideline. Note 3 instructs a court that when "applying subsections (b)(1), (b)(2), and (b)(3)" of § 2L1.2-i.e. , the § 2L1.2(

b) enhancements-a court should "use only those convictions that receive criminal history points under § 4A1.1(a), (b), or (c)." U.S.S.G. § 2L1.2 cmt. n.3. Criminal history points are added under § 4A1.1(

a) and § 4A1.1(

b) based on "prior sentence[s] of imprisonment" of over 13 months (for which three points are added) and between 60 days and 13 months (for which two points are added), respectively. Under § 4A1.1(c), one additional point is added for "each prior sentence" not counted in either (

a) or (b). Subsection (

e) to § 4A1.1 -which is not referenced in § 2L1.2 's Application Note 3-instructs courts to "[a]dd 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) ... because such sentence was treated as a single sentence ." U.S.S.G. § 4A1.1(e) (emphasis added). The upshot is that certain "prior sentence[s] of imprisonment" in § 4A1.1(a)-(

c) will actually sometimes consist of aggregated sentences from multiple separate convictions pursuant to the single sentence rule. Because Application Note 3 to § 2L1.2 instructs courts, for purposes of applying the § 2L1.2(

b) enhancements, to use only convictions that receive criminal history points under subsections (a)-(

c) of § 4A1.1, it suggests that whether and how a conviction should be counted for purposes of a § 2L1.2(

b) enhancement depends on the operation of the single sentence rule. This understanding is reinforced by a second directive in Application Note 3 to § 2L1.2-that "for purposes of subsections (b)(1)(B), (b)(2)(E), and (b)(3)(E)" of that section, courts "use only those convictions that are counted separately under [the single sentence rule in] § 4A1.2(a)(2)." U.S.S.G. § 2L1.2 cmt. n.3.

This directive further suggests that the Sentencing Commission anticipated that in some instances two or more convictions could be counted-and referred to-as one under the single sentence rule, and that a court should do so for purposes of other subsections of § 2L1.2. Were this not the baseline assumption, there would be no need to explicitly make the single sentence rule inapplicable to these subsections. Application Note 3 therefore weighs in favor of applying the single sentence rule to determine which § 2L1.2(b)(3) enhancement applies.

Application Note 4 to § 2L1.2, which deals with cases in which a sentence for an illegal reentry offense was imposed at the same time as one for another felony offense, lends some additional support for applying the single sentence rule. It provides: There may be cases in which the sentences for an illegal reentry offense and another felony offense were imposed at the same time and treated as a single sentence for purposes of calculating the criminal history score under § 4A1.1(a), (b), and (c).

In such a case, use the illegal reentry offense in determining the appropriate enhancement under subsection (b)(1), if it independently would have received criminal history points. In addition, use the prior sentence for the other felony offense in determining the appropriate enhancement under subsection (b)(3), if it independently would have received criminal history points. U.S.S.G. § 2L1.2 cmt. n.4 (emphasis added). Like Note 3, this application note appears to assume that § 4A1.2(a) 's single sentence rule would normally apply to § 2L1.2(

b) enhancements. 3. The Sentencing Commission's statement of reasons for the amendment to § 2L1.2 that created the version applicable here also supports the district court's application of the single sentence rule. See Ornelas , 825 F.3d at 554 (looking "to the Commission's statements of reason for guidance" in interpreting a guideline). Before that 2016 amendment, § 2L1.2(

b) enhancements were based on "the nature of a defendant's most serious conviction," as determined by the "categorical approach to the penal statute underlying the prior conviction." U.S.S.G. Supp. to app. C, amend. 802 at 155 (Nov. 1, 2016) ("Amendment 802"). Under the categorical approach, courts "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the 'generic' crime-i.e. , the offense as commonly understood." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

Due to a concern that this method of determining a level of enhancement was "overly complex," the Sentencing Commission adopted a simpler, sentence-based model whereby, with a few exceptions, "[t]he level of the sentencing enhancement for a prior conviction generally [would] be determined by the length of the sentence imposed for the prior offense." Amendment 802 at 155. In a

section of the statement of reasons titled "Accounting for Other Prior Convictions," the Sentencing Commission analogized the sentence-imposed approach in subsections (b)(2) and (b)(3) "to how

Chapter Four of the Guidelines Manual determines a defendant's criminal history score based on his or her prior convictions"-notably referencing

Chapter Four (in which the single sentence rule appears) in its entirety. Amendment 802 at 156. "The [Sentencing] 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, ... consistent with how criminal history is generally scored in ...

Chapter Four of the Guidelines Manual." Amendment 802 at 157. The Commission also wrote, in a

section titled "Illegal Reentry": "The definition of 'sentence imposed' [in the amended § 2L1.2 ] is the same definition that appears in

Chapter Four of the Guidelines Manual." Amendment 802 at 155. The Sentencing Commission did not limit this explanation to any particular provision of

Chapter Four, thereby seeming to incorporate

Chapter Four's single sentence rule. Similarly, the Commission wrote, in a

section of the statement of reasons titled "Excluding Stale Convictions," that in the context of § 2L1.2 's specific offense characteristics, "it is ... appropriate to employ the criminal history rules." Amendment 802 at 159. Because the single sentence rule is contained in the part of

Chapter Four that prescribes the criminal history rules, this statement also suggests that the Commission envisioned that the rule would apply to the § 2L1.2(

b) enhancements. Perhaps the strongest evidence of the Commission's intent appears in another passage of the statement of reasons under the heading "Application of the 'Single Sentence Rule,' " which discusses the 2016 addition of what became Application Note 4 to § 2L1.2. See Amendment 802 at 159. As we have mentioned, Application Note 4 deals with cases in which a defendant is sentenced for an illegal reentry offense at the same time as another federal felony offense.

In such cases, "the illegal reentry offense counts towards subsection (b)(1), while the other felony offense counts towards subsection (b)(3)." Amendment 802 at 159. The Commission explained in the statement of reasons that it intended "to make a distinction between illegal reentry offenses and other types of offenses," and "concluded that it was appropriate to ensure that such convictions are separately accounted for under the applicable specific offense characteristics, even if they might otherwise constitute a 'single sentence' under § 4A1.2(a)(2)." Amendment 802 at 159.

Thus, both the text of Application Note 4 and the Commission's stated reason for adding it are based on an assumption that the single sentence rule would apply to § 2L1.2. Applying the single sentence rule to § 2L1.2 also makes sense in light of the Sentencing Commission's purpose in drafting Amendment 802. The amended enhancements' "sentence imposed" approach replaced the earlier categorical method and was intended to capture-in a simpler way-the seriousness of a defendant's prior offense. The single sentence rule requires aggregation only when sentences are ordered to run consecutively .

The imposition of consecutive, rather than concurrent, sentences generally reflects a decision by either a sentencing judge or, in some cases when sentences are statutorily required to run consecutively, by a legislature, that a consecutive term of imprisonment would better reflect the seriousness of a defendant's conduct as well as the need for deterrence, education or treatment of the defendant, and protection of the public.

See 18 U.S.C. § 3584 (stating that "[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively," and directing judges to consider the sentencing factors set forth in 18 U.S.C. § 3553 "in determining whether the terms imposed are to be ordered to run concurrently or consecutively"); 18 U.S.C. § 3553 (sentencing factors); Setser v.

United States , 566 U.S. 231, 236, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012) ("Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose."). Applying the single sentence rule to the § 2L1.2(b)(2) and (b)(3) enhancements therefore captures the seriousness of a defendant's prior convictions and achieves the same goal that the previous categorical approach sought to achieve. 4.

Even if there were some ambiguity in how broadly the Sentencing Commission intended the single sentence rule to apply, as the dissent's arguments for a contrary

interpretation suggest there may be, the goal of avoiding a circuit split would lead us to hold that the single sentence rule applies here. "[A]bsent a strong reason to do so, we will not create a direct conflict with other circuits." United States v. Chavez-Vernaza , 844 F.2d 1368, 1374 (9th Cir. 1987) ; see also Global Linguist Sols., LLC v. Abdelmeged , 913 F.3d 921, 923 (9th Cir. 2019) ("[W]e so hold to avoid an unnecessary circuit split."). The Fifth Circuit recently became the first circuit court to answer whether, under the 2016 Guidelines Manual, the single sentence rule applies to § 2L1.2(b).

In United States v. Garcia-Sanchez , that court held that it does. 916 F.3d 522, 526 (5th Cir. 2019). The Garcia-Sanchez decision therefore weighs heavily in favor of affirming the district court's

interpretation here. The Fifth Circuit found support for its conclusion in two components of Amendment 802 discussed above. It first looked to the

section on "Accounting for Other Prior Convictions" in the Sentencing Commission's statement of reasons for Amendment 802, which described the length of a sentence imposed as "a strong indicator of the court's assessment of the seriousness of the predicate offense," and as "consistent with the

Chapter Four criminal history rules." Garcia-Sanchez , 916 F.3d at 527 (quoting Amendment 802 at 157-58). The Fifth Circuit further relied on the

section titled "Excluding Stale Convictions," which explains that, in the context of § 2L1.2(b) 's specific offense characteristics, "it is ... appropriate to employ the criminal history rules," which contain the single sentence rule. Id. (quoting Amendment 802 at 159). The court in Garcia-Sanchez also found persuasive the Fourth Circuit's reasoning in United States v. Martinez-Varela , 531 F.3d 298 (4th Cir. 2008).

In that case, the district court aggregated sentences for purposes of applying a pre-2016 version of § 2L1.2(b)(1), which called for an enhancement if a defendant was "previously convicted of a drug trafficking offense for which the 'sentence imposed' was greater than thirteen months." Martinez-Varela , 531 F.3d at 299. That version of § 2L1.2, like the 2016 version, contained an application note that referenced Application Note 2 and subsection (

b) of § 4A1.2 for purposes of defining "sentence imposed." Id. at 300. The Fourth Circuit affirmed, reasoning that although the provisions cross-referenced in application notes to § 2L1.2 did not specifically address the issue of aggregating sentences, commentary to § 4A1.1 instructed that " §§ 4A1.1 and 4A1.2 must be read together," providing "strong evidence that these two provisions should be read together in determining [the defendant's] criminal history points," and thus that the single sentence rule should apply to the § 2L1.2(b)(1) enhancement at issue. Id. at 301-02.

Although our court had no previous occasion to reach the sentencing question presented here, the holding in Garcia-Sanchez and the reasoning in Martinez-Varela are consistent with our case law. We previously recognized that "[s]ections 2L1.2(

b) and 4A1.1-2 serve the same underlying function" of "determin[ing] the extent to which prior convictions affect a defendant's sentence for the current offense," and that it therefore "makes sense to treat prior sentences in the same manner when they are used to determine the offense level under

section 2L1.2 as when they are used to determine the criminal history category." United States v. Ortiz-Gutierrez , 36 F.3d 80, 82 (9th Cir. 1994) ; see also United States v. Moreno-Cisneros , 319 F.3d 456, 458-59 (9th Cir. 2003) (noting that "Guideline § 4A1.2 is analogous to § 2L1.2(b)(1)," and that § 4A1.2 is "broadly applicable"); United States v. Frias , 338 F.3d 206, 210 (3d Cir. 2003) (describing

Chapter 4 and an earlier version of § 2L1.2 as "clearly aimed at the same thing, which is varying the punishment based on the criminal record," and concluding that it therefore made sense to refer to

Chapter Four's

definitions in applying § 2L1.2 (quotation marks omitted)); United States v. Galicia-Delgado , 130 F.3d 518, 521 (2d Cir. 1997) ("[T]he

definitions found in § 4A1.2 have often been borrowed to interpret terms in § 2L1.2."). We thus now join the Fifth Circuit in holding that the single sentence rule applies to the enhancements in § 2L1.2(b)(2) and (b)(3). III. For the foregoing reasons, we reject Cuevas-Lopez's argument that the district court was wrong to apply the single sentence rule in calculating his sentence. We therefore AFFIRM . We review Cuevas-Lopez's sentence based on the 2016 Guidelines Manual, which was in effect at the time of Cuevas-Lopez's sentencing.

U.S.S.G. § 1B1.11 (2018) ("The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced," unless doing so "would violate the ex post facto clause of the United States Constitution."); see also United States v. Thomsen , 830 F.3d 1049, 1071 (9th Cir. 2016). All

section references, and all citations to the Guidelines Manual, are to the 2016 version unless otherwise specified. Although the PSR referred to Cuevas-Lopez as having "sustained a felony conviction" after first being deported, the relevant question under § 2L1.2(b)(3) is whether a defendant "engaged in criminal conduct" after deportation that later resulted in a felony conviction. This difference is immaterial here because Cuevas-Lopez's relevant conduct and resulting convictions all occurred after he was first ordered deported.

The guideline applicable to a substantive offense generally also applies to inchoate offenses such as attempt. See U.S.S.G. § 2X1.1 (2018). The parties do not dispute that § 2L1.2, which is titled "Unlawfully Entering or Remaining in the United States," applies to Cuevas-Lopez's attempted illegal reentry. See United States v. Rosales-Aguilar , 818 F.3d 965, 972 (9th Cir. 2016) (applying § 2L1.2 to an attempted illegal reentry case).

In § 2L1.2(b)(1), the level of enhancement depends on whether the defendant, before committing the offense for which he is being sentenced, sustained "a conviction for a felony that is an illegal reentry offense" or sustained "two or more convictions for [improper entry] misdemeanors under 8 U.S.C. § 1325(a)." U.S.S.G. § 2L1.2(b)(1). Both (b)(2)(

E) and (b)(3)(

E) apply a two-level enhancement where a defendant has "three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses." U.S.S.G. § 2L1.2(b)(2)(E), (b)(3)(E). Although we apply the 2016 Guidelines Manual here, we note that § 2L1.2 was amended in 2018 to "establish[ ] that the application of the § 2L1.2(b)(2) enhancement depends on the timing of the underlying 'criminal conduct,' and not on the timing of the resulting conviction." U.S.S.G. Supp. to app. C, amend. 809 at 188 (Nov. 1, 2018).

The amended § 2L1.2(b)(2) applies when "before the defendant was ordered deported or ordered removed ... for the first time, the defendant engaged in criminal conduct that, at any time, resulted in" the various convictions and sentences enumerated in that section. U.S.S.G. § 2L1.2(b)(2) (2018).

The Sentencing Commission simultaneously updated subsection (b)(3) to mirror the language in subsection (b)(2), see § 2L1.2(b)(3) (2018), though subsection (b)(3), unlike (b)(2), had already (before the 2018 amendment) depended upon the timing of the underlying conduct, rather than the underlying conviction, see § 2L1.2(b)(3) (2016). The Guidelines Manual does state, as Cuevas-Lopez argues, that "[a]n instruction to use a particular subsection or table from another offense guideline refers only to the particular subsection or table referenced, and not to the entire offense guideline." U.S.S.G. § 1B1.5(b)(2).

Section 4A1.2 is not, however, an offense guideline-rather, it provides "Definitions and Instructions for Computing Criminal History." And, in any event, even if the reference to subsection (

b) does not itself amount to an instruction to apply subsection (a), it still leaves us with silence on whether or not to apply subsection (a)'s single sentence rule. These subsections retained a categorical approach after the 2016 amendment to § 2L1.2, discussed below, and deal with prior misdemeanor convictions. See infra n.9. We note, however, that even before 2016, the § 2L1.2(b)(1)(

A) and (

B) enhancements required a court to use both a categorical approach and a sentence-imposed approach, as subsection (

A) applied where a defendant sustained "a conviction for a felony offense that [was] ... a drug trafficking offense for which the sentence imposed exceeded 13 months," and subsection (

B) applied where a defendant sustained a felony drug trafficking conviction "for which the sentence imposed was 13 months or less." U.S.S.G. § 2L1.2(b)(1) (2015). The guideline retained the categorical approach for § 2L1.2(b)(1)(B), (b)(2)(E), and (b)(3)(E), relating to predicate misdemeanor convictions, as well as § 2L1.2(b)(1)(A), relating to predicate illegal reentry felonies. Additionally, before 2016, § 2L1.2(

b) included only an enhancement for convictions that occurred before deportation. See U.S.S.G. § 2L1.2 (2015). Amendment 802 sought to address a concern that, because of this, § 2L1.2 did not sufficiently account for all types of criminal conduct committed by persons charged with illegal reentry. Amendment 802 at 155-56. We note that although

Chapter Four uses the term "sentence imposed," it does not specifically define it. Prior to Garcia-Sanchez , the Fifth Circuit had held in United States v. Ponce-Flores , 900 F.3d 215 (5th Cir. 2018), that because any error could not have been obvious, a district court did not plainly err in applying the single sentence rule to a § 2L1.2 enhancement. Id. at 219. In Ortiz-Gutierrez , we applied the single sentence rule to another pre-2016 enhancement under § 2L1.2 that turned on whether a defendant's predicate offense was an aggravated felony, which at the time "include[d] a crime of violence for which the defendant was sentenced to at least five years imprisonment." 36 F.3d at

Section 2L1.2 did not cross-reference either § 4A1.1 or § 4A1.2. Id . We reject Cuevas-Lopez's argument that we should apply the rule of lenity to hold in his favor. "[T]he rule of lenity applies to the Sentencing Guidelines," but "only ... where there is grievous ambiguity or uncertainty in the guidelines." United States v. D.M. , 869 F.3d 1133, 1144 (9th Cir. 2017). We find no such "grievous ambiguity or uncertainty" in the question of Guidelines Manual

interpretation presented here.