United States Court of Appeals
For the First Circuit
No. 02-1741
UNITED STATES OF AMERICA,
Appellee,
v.
SAMUEL SANCHEZ-MOTA,
Defendant, Appellant.
___________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
___________________________
Before
Selya, Circuit Judge,
Farris,* Senior Circuit Judge, and
Howard, Circuit Judge.
___________________________
Héctor E. Guzmán-Silva, Assistant Federal Public Defender,
with whom Joseph C. Laws, Jr., Federal Public Defender, and Juan
F. Matos-DeJuan, Assistant Federal Public Defender, were on
brief, for Appellant.
Thomas F. Klumper, Assistant United States Attorney, with
whom H. S. Garcia, United States Attorney, and Sonia I. Torres,
Assistant United States Attorney, were on brief, for the
Appellee.
December 24, 2002
*
Of the Ninth Circuit, sitting by designation.
Per Curiam. Defendant Samuel Sanchez Mota pleaded guilty
to being an alien found in the United States after removal, in
violation of 8 U.S.C. § 1326(a). The district court applied
U.S.S.G. § 2L1.2(b)(1)(C) to enhance his base offense by 8 levels
for remaining in the United States after an aggravated felony
conviction. We reverse and remand for resentencing.
BACKGROUND
Title 8, § 1326(a) forbids an alien who was once removed
from the country to return to the United States without special
permission, and it authorizes a prison term of up to, but no more
than, two years. Section 1326(b) authorizes a prison term of up
to, but no more than, 20 years for "any alien described" in
subsection (a), if the initial "removal was subsequent to a
conviction for commission of an aggravated felony." 8 U.S.C.
§ 1326(b) (emphasis added). As the government acknowledges, there
is no question that the defendant is subject to § 1326(a), but is
not subject to § 1326(b). Nevertheless, his conviction for an
aggravated felony—though his initial removal was precedent to the
conviction—served as the basis for the district court's application
of a sentencing enhancement and a term of imprisonment in excess of
the § 1326(a) limit of two years.
The facts are not in dispute. Samuel Sanchez-Mota was
deported from the United States in 1994. He returned and was again
deported/removed from the United States in August 1999. Sometime
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after this removal, Sanchez-Mota reentered the United States. In
April 2000, he was convicted in Puerto Rico of an "aggravated
felony," receipt of illegally appropriated goods, and sentenced to
two years. On an unknown date in 2001, Sanchez-Mota was released
from custody upon the completion of his sentence. In July 2001, he
was arrested and charged with being an illegal alien "found in" the
United States after deportation, in violation of 8 U.S.C.
§ 1326(a). He pleaded guilty. His non-binding plea agreement
specified a U.S.S.G. calculation with the understanding that
Sanchez-Mota was not an aggravated felon. That calculation would
have provided for an adjusted offense level of 6, resulting in a
guideline sentencing range of 9 to 15 months.
The district court disagreed with the calculation
presented by the parties. U.S.S.G. § 2L1.2(b)(1)(C) provides for
an 8-level enhancement in the base offense level "[i]f the
defendant previously was deported, or unlawfully remained in the
United States, after . . . a conviction for an aggravated felony."
The district court, accepting the recommendation of the probation
officer, concluded that the guideline for aggravated felons
applied. The court sentenced Sanchez-Mota in accordance with an
adjusted offense level of 13, which resulted in a 30-month
sentence.
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DISCUSSION
We review the district court's interpretation and
application of the sentencing guidelines de novo and its factual
findings for clear error. United States v. Skrodzki, 9 F.3d 198,
203 (1st Cir.1993).
Although the language of the relevant statute and
guideline is convoluted, the question presented is simple: does a
U.S.S.G. § 2L1.2(b)(1)(C) enhancement apply to Sanchez-Mota, whose
removal was precedent to his conviction for an aggravated felony?
The government argues that it does because Sanchez-Mota unlawfully
"remained" in the United States after his conviction, i.e., his
initial deportation could serve as the basis for unlawfully
remaining in the country subsequent to his conviction because 8
U.S.C. § 1326(a) constitutes a continuing offense. The government
reconciles the contradiction between U.S.S.G. § 2L1.2(b)(1)(C) and
8 U.S.C. § 1326(b)—a penalty provision that states that an alien's
removal must be subsequent to an aggravated felony—by asserting
that § 1326(b) doesn't apply. According to the government, the
district court correctly applied the U.S.S.G. § 2L1.2(b)(1)(C)
enhancement, but should have sentenced Sanchez-Mota to no more than
two years, the statutory maximum under § 1326(a). Sanchez-Mota
argues that U.S.S.G. § 2L1.2(b)(1)(C) does not apply to these
factual circumstances. Alternatively, he argues that the guideline
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language is ambiguous and the rule of lenity should be applied in
his favor.
Sanchez-Mota's position is more persuasive based on:
(1) the plain language of U.S.S.G. § 2L1.2(b)(1)(C); and (2) the
relationship between U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C.
§ 1326(a).
1. Plain Language of U.S.S.G. § 2L1.2(b)(1)(C)
U.S.S.G. § 2L1.2 is entitled "Unlawfully Entering or
Remaining in the United States." It is the "Remaining in the
United States" aspect that the government attempts to apply to
Sanchez-Mota. Because § 1326(a) constitutes a continuing offense,
the government argues that the 8-level enhancement applies—even if
his removal was precedent to the conviction. According to the
government, Sanchez-Mota necessarily "remained" in the country
subsequent to his conviction for an aggravated felony.
The application notes for U.S.S.G. § 2L1.2(b)(1)(C)
provide:
A defendant shall be considered to have
unlawfully remained in the United States if
the defendant remained in the United States
following a removal order issued after a
conviction, regardless of whether the removal
order was in response to the conviction.
U.S.S.G. § 2L1.2, cmt. n.1(A)(iii) (emphasis added). This language
suggests that the guideline enhancement will apply, at most, to an
alien who (a) commits an aggravated felony, (b) is then subject to
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an order of deportation or removal, and (c) doesn't depart but
instead remains in the United States unlawfully.
In contrast, Sanchez-Mota (a) was removed, (b) returned
illegally, and (c) was convicted of an aggravated felony. Were the
government's interpretation of U.S.S.G. § 2L1.2(b)(1) adopted, it
wouldn't matter whether the removal occurred precedent to or
subsequent to the conviction. So long as the defendant had been
previously deported, he would face a sentencing enhancement if he
committed an aggravated felony. Thus, the government implies that
applying the present guideline would have changed the result of
United States v. Mendoza-Alvarez, 79 F.3d 96 (8th Cir. 1996).
In Mendoza-Alvarez, the defendant's initial deportation
occurred in 1986 or earlier, he was convicted of a crime in 1987,
and he voluntarily departed sometime after that only to return
illegally. This final time around, he pleaded guilty to illegal
reentry in violation of 8 U.S.C. § 1326(a), and the district court
enhanced his base level for the offense under U.S.S.G.
§ 2L1.2(b)(1). The government argued that this enhancement was
proper because the defendant (a) had been convicted of an
aggravated felony, and (b) had voluntarily departed the country and
then illegally returned. The Eighth Circuit reversed because the
government had failed to offer any evidence that defendant had ever
been deported after his conviction. Id. at 97-98. According to the
government's interpretation, this consideration would not matter
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under U.S.S.G. 2L1.2(b)(1)(C) because the defendant's 1987
deportation order meant that he was unlawfully "remaining in the
United States" subsequent to any conviction. This interpretation
is unsupported and unpersuasive.
2. Relationship Between U.S.S.G. § 2L1.2(b)(1) and 8 U.S.C.
§ 1326
A larger problem with the government's interpretation of
U.S.S.G. § 2L1.2(b)(1) is that it allows the application of a
greater penalty according to the rationale of § 1326(b) for someone
convicted only of violating § 1326(a), even when § 1326(b)
expressly doesn't apply. We reject the argument.
The Sentencing Commission added the unlawfully
"remaining" provision and its explanatory notes to U.S.S.G. § 2L1.2
in order to implement the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009.
IIRIRA provided that the Sentencing Commission was to "make
appropriate changes in the base offense level for offenses under
. . . 8 U.S.C. 1252(e) and 1326(b)" to reflect corresponding
changes made in statutory penalties for those offenses made by the
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-
322, 108 Stat. 1796. IIRIRA § 334 (emphasis added); see U.S.S.G.,
App. C, amend. 562. The old § 1252(e), the substance of which is
now contained in 8 U.S.C. § 1253(a), addressed penalties for
"failure to depart," the natural correlative for unlawfully
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"remaining in the United States." See VCCLEA § 130001; 8 U.S.C.
§ 1253(a) ("Penalty for failure to depart"). That section is not
at issue here. Section 1326(b) addresses aliens whose removal was
subsequent to their convictions for aggravated felonies. The
government recognizes that section 1326(b) is also not at issue
here. The guidelines contain no discussion whatsoever about
applying the unlawfully "remaining" language to defendants
convicted under § 1326(a) but not § 1326(b). The government's
suggestion to the contrary is unsupported.
Furthermore, the base offense level for someone convicted
of a violation of § 1326(a) alone is 8, which at most (for someone
in the top criminal history category) would result in a sentence of
24 months, i.e., the same as the statutory maximum under § 1326(a).
See U.S.S.G. § 2L1.2(a); Ch. 5, Pt. A (Sentencing Table). If the
defendant was previously deported, or unlawfully remained in the
United States, after a conviction for an aggravated felony, the
base level is increased by 8 levels. At offense level 16, the
maximum sentence is 57 months, a figure that far exceeds the
statutory maximum of subsection (a), but one that falls well within
the statutory maximum of 20 years contained in subsection (b). See
id. It makes little sense for the government to suggest that
U.S.S.G. § 2L1.2(b)(1)(C) would require an automatic statutory
maximum sentence of two years for all defendants similarly situated
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to Sanchez-Mota.1 Far more persuasive is the defendant's
contention that the U.S.S.G. § 2L1.2(b)(1)(C) enhancement does not
apply to him.
Reversed and remanded for resentencing.
1
Under a straight application of the guidelines, only
defendants with a criminal history category of (I) would be
sentenced to less than two years. Even then the range would be 21
to 27 months. U.S.S.G. Ch. 5, Pt. A.
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