In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1470
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C RUZ L OPEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:09-cr-50033-1—Frederick J. Kapala, Judge.
A RGUED N OVEMBER 5, 2010—D ECIDED M ARCH 4, 2011
Before E VANS, S YKES, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. This appeal presents an
issue of law concerning the application of section 2L1.2
of the Sentencing Guidelines to an alien’s illegal
reentry into the United States after an earlier felony
conviction and deportation. Guideline section 2L1.2 calls
for a base offense level of eight, which is increased by
sixteen levels for, among other things, a prior conviction
of a drug trafficking offense for which the sentence im-
2 No. 10-1470
posed exceeded thirteen months. The increase is only
twelve levels for a drug trafficking offense for which
the sentence imposed was thirteen months or less.
The issue here is whether the sentencing court should
measure the seriousness of an alien’s prior drug traf-
ficking conviction by the sentence imposed before the
defendant’s deportation and illegal reentry, or whether the
court should take into account a later increase in the
sentence as a result of a probation revocation. Based
on the language of the guideline, we conclude that the
seriousness of the earlier conviction should be measured,
for guideline purposes, based on the sentence imposed
before the defendant’s earlier deportation and illegal
reentry. We therefore vacate the appellant’s sentence
and remand for resentencing.
The relevant facts are simple. In 2004, appellant Cruz
Lopez was convicted of drug trafficking in an Illinois
state court. He was sentenced to 180 days in the county
jail and 48 months of probation. In 2006, he was deported
from the United States. He later illegally reentered the
country and was discovered and detained by the De-
partment of Homeland Security on February 18, 2009.
Then, on April 7, 2009, while Lopez was in federal custody,
the state court revoked Lopez’s sentence of probation
for the 2004 drug trafficking conviction and imposed
a sentence of three years in prison. Lopez’s probation
was revoked for his failure to report to his state proba-
tion officer after his 2006 deportation. On July 21, 2009,
Lopez was indicted by the federal authorities for his
crime of illegal reentry after an earlier deportation that
No. 10-1470 3
followed a conviction for an aggravated felony. 8 U.S.C.
§§ 1326(a), (b)(2). He pled guilty and was sentenced,
pursuant to the sixteen-level enhancement of section
2L1.2(b)(1)(A)(i). His sentence of 74 months in prison
was within the guideline range of 70 to 87 months based
on the sixteen-level enhancement. Lopez argues that
only the twelve-level enhancement should apply, based
on the sentence he received originally, before he
was deported and reentered the United States. With the
twelve-level enhancement, the guideline range is only
46 to 57 months.
The legal issue requires close attention to the text of
section 2L1.2(b)(1), which instructs the sentencing court
in an illegal reentry case to:
(1) Apply the Greatest:
If the defendant previously was deported, or unlaw-
fully remained in the United States, after—
(A) a conviction for a felony that is (i) a drug
trafficking offense for which the sentence im-
posed exceeded 13 months . . . increase by 16
levels;
(B) a conviction for a felony drug trafficking of-
fense for which the sentence imposed was
13 months or less, increase by 12 levels.
The question here is whether we should count only
the original, shorter sentence imposed before Lopez’s
deportation or should count the more severe sentence
imposed on revocation of Lopez’s probation for drug
trafficking—a sentence that was imposed after he was
4 No. 10-1470
deported and illegally reentered, but before he was in-
dicted, convicted, and sentenced for the crime of illegal
reentry. We review the district court’s interpretation
and application of the Sentencing Guidelines de novo.
See United States v. Anderson, 580 F.3d 639, 648 (7th Cir.
2009). We hold that Lopez’s later sentence on probation
revocation after his deportation and reentry should
not count under section 2L1.2(b)(1)(A)(i).
The government argues that the timing of the imposi-
tion of Lopez’s various sentences is immaterial to the
application of section 2L1.2(b)(1)(A)(i) because Lopez’s
drug trafficking conviction preceded his deportation.
This argument is not consistent with the text of
the guideline. The guideline requires that a defendant’s
sentence of over thirteen months be imposed before the
defendant’s deportation. “If the defendant previously
was deported . . . after—a conviction for a felony that
is (i) a drug trafficking offense for which the sen-
tence imposed exceeded 13 months. . . .” U.S.S.G.
§ 2L1.2(b)(1)(A)(i). The past tense “imposed” indicates
that the focus is on the sentence that was imposed
before the deportation and reentry. Here, when Lopez
was deported, the sentence that had been imposed for
his drug trafficking conviction was below the thirteen-
month threshold of the guideline. Although Lopez’s
later sentence for violating his probation related back to
his underlying conviction for a drug offense, the sen-
tence imposed did not cross the thirteen-month
threshold until after he had already been deported—not
before. The later imposition of a sentence exceeding
thirteen months after the deportation and reentry does not
No. 10-1470 5
satisfy the temporal restriction of section 2L1.2(b)(1)(A)(i).
The guideline’s sixteen-level enhancement therefore
does not apply to Lopez.
Our holding is consistent with the Eleventh Circuit’s
decision in United States v. Guzman-Bera, 216 F.3d 1019
(11th Cir. 2000). At issue was a prior version of section
2L1.2(b)(1)(A) that applied the sixteen-level enhance-
ment for the commission of an aggravated felony prior
to deportation (not specifically for an over thirteen-
month sentence imposed for a drug trafficking convic-
tion). See U.S.S.G. § 2L1.2(b)(1)(A) (1997). Under that
version of the guideline, an “aggravated felony” in-
cluded “a theft offense . . . for which the term of impris-
onment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G),
referenced by U.S.S.G. § 2L1.2 cmt n.1 (1997). Guzman-
Bera was deported in 1991 after being convicted for
cocaine possession. He reentered the country and was
arrested for grand theft in 1995. He was found guilty and
sentenced to five years of probation by a Florida state
court. He again was deported, again reentered, and in
1998 was arrested and convicted of violating his proba-
tion (and of several additional counts of grand theft). The
Florida court revoked his probation and sentenced him
to eighteen months in prison. The issue was whether
Guzman-Bera’s 1995 theft conviction could be coupled
with the eighteen-month sentence that was imposed
when his probation was revoked to make it an
“aggravated felony” and thus meet the threshold then
applicable under section 2L1.2(b)(1)(A). The Eleventh
Circuit held that it could not: “when a defendant has
simply been placed on probation and has not been sen-
6 No. 10-1470
tenced to a prison term at the time of deportation and
reentry, the ‘aggravated felony’ enhancement does not
apply.” Guzman-Bera, 216 F.3d at 1020. The court found
that the sentence actually imposed on Guzman-Bera for
his 1995 theft conviction was his probation, not the
later eighteen-month sentence he received when his
probation was revoked. The defendant’s theft convic-
tion was not an aggravated felony when he was
deported, and should not have been used to enhance
his sentence under the earlier version of section
2L1.2(b)(1)(A). The government attempts to distinguish
Guzman-Bera because it concerned the classification of
certain offenses as aggravated felonies (or not) for pur-
poses of the former section 2L1.2(b)(1)(A). We believe
this is a distinction without a difference, and we follow
the Eleventh Circuit’s approach.
Our interpretation of the guideline is consistent
with both the purpose behind the enhancement and
the larger goal of consistent application of the Sen-
tencing Guidelines. Defendants who reenter the country
illegally after having committed more serious drug traf-
ficking crimes should be punished more severely than
defendants who reenter the country illegally after
having committed less serious drug trafficking crimes.
The Guidelines use the length of the sentence as a rough
measure of the seriousness of the underlying drug traf-
ficking crime and the seriousness of the new crime of
illegal reentry. Probation revocation sentences imposed
after a defendant has been deported tell us little about
the seriousness of either the prior drug trafficking crime
or the new crime of illegal entry. Probation can be
No. 10-1470 7
revoked for non-criminal and relatively less significant
actions or inactions. Here, for example, the state court
originally sentenced Lopez to 180 days in jail and 48
months of probation for his drug trafficking offense,
indicating that it believed his offense to be of the less
serious variety. The fact that his probation was later
revoked for his inevitable failure to report to his proba-
tion officer after he was deported tells us nothing about
the relative seriousness of the original drug trafficking
offense or the illegal reentry.
We also share the concerns of the Fifth Circuit, expressed
last year in United States v. Bustillos-Pena, 612 F.3d 863
(5th Cir. 2010). In a case with facts nearly identical to
this one, the government raised nearly identical argu-
ments in favor of the sixteen-level enhancement. The
Fifth Circuit expressed its wariness of the government’s
position, noting that under the government’s reading of
the guideline, the enhancement could be triggered by
unrelated conduct occurring long after the commission
of the crime of reentry if that conduct—conduct
that was not necessarily illegal—violated the terms of
the defendant’s probation. Bustillos-Pena, 612 F.3d at
867. The court also expressed its concern that, under
the government’s view, two defendants who committed
identical acts could receive widely disparate guideline
ranges depending on the accident of which authorities
moved more quickly:
Thus, a defendant who was sentenced to probation
and deported, and who later reentered illegally,
could have his probation revoked by state
8 No. 10-1470
authorities if they discovered that he had reentered
illegally. If he were sentenced to more than thirteen
months’ imprisonment and were later found in
state custody by ICE officials, he could then be
charged with illegal reentry and have his offense
level enhanced by sixteen levels under the Govern-
ment’s interpretation. Meanwhile, a second defendant
with an identical criminal history who also illegally
reentered, but was fortunate enough to be appre-
hended by ICE before the state authorities, would
have a much lower sentence for his guideline range,
even if the state later revoked his probation based
on his federal conviction.
Id. at 868. We share these concerns.
In spite of these concerns, the Fifth Circuit concluded
that the guideline was ambiguous with respect to its
application to a defendant who was “deported before
being sentenced to more than thirteen months of impris-
onment on a conviction that predated his deportation
and where the defendant was convicted of illegal
reentry while incarcerated.” Id. at 869. Having found
the guideline to be ambiguous, the majority applied the
rule of lenity and resolved the issue in the defendant’s
favor. See id. We find no such ambiguity in the guideline,
but we reach the same result.
The government argues that the commentary to section
2L1.2 supports its interpretation of the guideline. There,
the Sentencing Commission gave the term “sentence
imposed” the same meaning that the phrase “sentence
of imprisonment” is given “in Application Note 2 and
No. 10-1470 9
subsection (b) of § 4A1.2 (Definitions and Instructions
for Computing Criminal History), without regard to the
date of the conviction. The length of the sentence of impris-
onment includes any term of imprisonment given upon revoca-
tion of probation, parole, or supervised release.” U.S.S.G.
§ 2L1.2, cmt n. 1(B)(vii) (emphasis added).1 The govern-
ment reads this comment to mean that the sentence
imposed on Lopez in October 2004 for his drug traf-
ficking conviction included the 36-month “sentence of
imprisonment” the state court later imposed on Lopez
in April 2009 for violating his probation. That may
be correct for many purposes, including calculating a
defendant’s criminal history. But the application note
and the argument do not address the issue of timing
under section 2L1.2(b)(1). Lopez was convicted in 2004,
he was deported in 2006, and the increased sentence
was imposed in 2009. Even if the term of imprisonment
to which Lopez was sentenced in 2009 upon revocation
of his probation was part of the “sentence imposed” for
his 2004 drug trafficking conviction for other purposes,
that fact does not change the key fact that Lopez was not
1
Subsection (b) of section 4A1.2 provides:
(b) Sentence of Imprisonment Defined
(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.
10 No. 10-1470
deported after that sentence was imposed, as section
2L1.2(b)(1)(A)(i) requires. Lopez was deported before
the higher, over-the-threshold sentence was imposed.
The temporal restriction of the guideline is clear. The ap-
plication note does not speak to the question before us
in this case or alter our interpretation of the guideline.2
Although we believe that the plain language of the
guideline supports our holding, we note that the Second
Circuit has held otherwise, finding that the guideline’s
sixteen-level enhancement applies regardless of the
timing of the defendant’s deportation and revocation of
probation. In United States v. Compres-Paulino, 393 F.3d
116 (2d Cir. 2004), the defendant had been convicted in
2000 on charges of distributing a controlled substance.
He was sentenced to three to six years of parole and,
while on parole, was deported and reentered. He com-
mitted a second drug offense, possession this time, and
his parole was revoked and he was sentenced to
29 months in prison. When he pled guilty to
illegal reentry in 2003, the sentencing court applied the
sixteen-level enhancement in section 2L1.2(b)(1)(A)(i). On
appeal, the Second Circuit found “the determinative
factor” to be that the defendant had been convicted of a
drug felony before he was deported. Id. at 118. Because
2
As we interpret section 2L1.2(b)(1)(A), the application note
would provide guidance where, for example, the increased
sentence was imposed before the defendant’s deportation
and later illegal reentry. The decisive issue under the terms
of section 2L1.2(b)(1)(A) is what sentence was imposed
before the defendant was deported and reentered.
No. 10-1470 11
“any punishment assessed for a violation of probation
is actually imposed for the underlying conviction,” the
court held that the defendant’s 2000 conviction for drug
trafficking included the 29-month prison sentence he
received when his parole was revoked. See Compres-
Paulino, 393 F.3d at 118, quoting United States v. Huerta-
Moran, 352 F.3d 766, 770 (2d Cir. 2003) (counting sentence
on parole revocation toward the thirteen-month
threshold in section 2L1.2(b)(1)(A) where revocation
occurred before final deportation and reentry). Based on
that reasoning, the Second Circuit extended its earlier
holding in Huerta-Moran to apply to sentences imposed
on revocation of probation after final deportation and
reentry. 393 F.3d at 118. For reasons previously ex-
plained, we believe that the determinative factor is not
when a defendant is convicted of the underlying drug
crime, but what sentence was imposed for that crime
before the defendant was deported. Accordingly, we
disagree with the Second Circuit’s decision in Compres-
Paulino.3
In a case like this one, presenting a rather technical and
arcane question in applying the Sentencing Guidelines,
it is perhaps worth another reminder that the Guidelines
3
In another similar case, the Tenth Circuit wrote that the
defendant made a “plausible” argument against application of
the sixteen-level enhancement based on a later probation
revocation, but held that any error was not “plain error” that
would justify reversal in the absence of an objection in the
district court. United States v. Ruiz-Gea, 340 F.3d 1181, 1187-88
(10th Cir. 2003).
12 No. 10-1470
are, after all, guidelines. They must be considered
seriously and applied carefully. See Gall v. United States,
552 U.S. 38, 49 (2007); United States v. Booker, 543 U.S. 220,
264 (2005). In the end, however, the defendant’s sentence
is the responsibility of the district judge, after careful
consideration of all the relevant factors under 18 U.S.C.
§ 3553(a). See Gall, 552 U.S. at 50. The focus must still be
on the nature and circumstances of the offense, the
history and characteristics of the offender, and several
goals of sentencing. A district court facing a tricky but
technical issue under the Guidelines may exercise its
discretion under section 3553(a) and may spell out on
the record whether and to what extent the resolution of
the guideline issue affected the court’s final decision on
the sentence. See, e.g., United States v. Sanner, 565 F.3d 400,
406 (7th Cir. 2009) (affirming above-guideline sentence
without regard for correct resolution of guideline issue);
United States v. Abbas, 560 F.3d 660, 666-67 (7th Cir. 2009)
(holding that guideline error was harmless based on
judge’s explanation of alternative basis for same sen-
tence); United States v. Anderson, 517 F.3d 953, 965-66 (7th
Cir. 2008). In this case, Lopez received a sentence within
the guideline range as calculated erroneously by the
district court. There was no separate indication as to
how the specific guideline issue affected the court’s
decision. We therefore must assume that the erroneous
interpretation of the guideline affected the final sentence.
We vacate Lopez’s sentence and remand for resentencing.
V ACATED AND R EMANDED.
3-4-11