United States v. Guzman-Mata

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 08-10061
v.
 D.C. No.
CR-07-01518-FRZ
SAIR GUZMAN-MATA, a.k.a. Claudio
Rios-Guzman, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding

Argued and Submitted
February 9, 2009—San Francisco, California

Filed August 27, 2009

Before: John T. Noonan, Marsha S. Berzon, and
N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

11939
 UNITED STATES v. GUZMAN-MATA 11941

COUNSEL

David T. Shannon, Assistant Arizona Federal Public
Defender, Tuscon, Arizona, for defendant-appellant, Sair
Guzman-Mata.
11942 UNITED STATES v. GUZMAN-MATA
Celeste B. Corlett and George Ferko, Assistant United States
Attorneys for the District of Arizona, Tuscon, Arizona, for
appellee United States of America.

OPINION

N.R. SMITH, Circuit Judge:

Appellant Sair Guzman-Mata appeals the sentence imposed
after he pleaded guilty to illegal re-entry into the United
States, in violation of 8 U.S.C. § 1326. Specifically, Guzman-
Mata challenges the district court’s imposition of a 16-level
enhancement (under the U.S. Sentencing Guidelines Manual
(U.S.S.G.) § 2L1.2(b)(1)(A)) for Guzman-Mata’s prior con-
viction under 8 U.S.C. § 1324(a)(1)(A).1 We hold that a con-
viction under 8 U.S.C. § 1324(a)(1) is categorically an “alien
smuggling offense” under U.S.S.G. § 2L1.2(b)(1)(A). There-
fore, the district court did not plainly err in imposing the
enhancement and we affirm Guzman-Mata’s sentence.

FACTS AND PROCEDURAL HISTORY

Guzman-Mata was deported in August 2007 following his
arrest and conviction for felony domestic assault in Minne-
sota. Three days after his deportation, Border Patrol agents in
Naco, Arizona, apprehended Guzman-Mata. He was subse-
quently charged with illegal re-entry, in violation of 8 U.S.C.
§ 1326, enhanced by 8 U.S.C. § 1326(b)(2). With the advice
of counsel, Guzman-Mata pleaded guilty on October 9, 2007.
1
That statute punishes, in pertinent part, any person who “knowing or
in reckless disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law, transports, or moves or
attempts to transport or move such alien within the United States by means
of transportation or otherwise, in furtherance of such violation of law[.]”
8 U.S.C. § 1324(a)(1)(A)(ii).
 UNITED STATES v. GUZMAN-MATA 11943
The Presentence Investigation Report (“PSR”) determined
that Guzman-Mata had a Criminal History Category of VI for
eighteen different criminal convictions over a ten-year period.2
At the time of his sentencing, the record indicated that
Guzman-Mata had been previously deported fourteen times.

For the present § 1326 violation, the district court deter-
mined Guzman-Mata’s base offense level to be eight. See
U.S.S.G. § 2L1.2. Guzman-Mata received a three point reduc-
tion for acceptance of responsibility and for timely notifying
the government of an intention to plead guilty. See U.S.S.G.
§§ 3E1.1(a)-(b). Per the PSR, the district court also applied a
16-level enhancement (under U.S.S.G. § 2L1.2(b)(1)(A)(vii))
for Guzman-Mata’s prior conviction of an alien smuggling
offense under 8 U.S.C. § 1324(a)(1). With a total offense
level of 21, the district court calculated the sentencing range
to be 77 to 96 months. The district court then expressly con-
sidered the § 3553(a) sentencing factors and sentenced
Guzman-Mata to 77 months’ imprisonment. At sentencing,
Guzman-Mata made no objection to the PSR or to the sen-
tence imposed. This appeal followed.

STANDARD OF REVIEW

We review de novo the district court’s interpretation and
application of the Federal Sentencing Guidelines, including
whether a prior conviction qualifies for enhancement under
U.S.S.G. § 2L1.2(b)(A). See United States v. Rodriguez-
Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005). However,
because Guzman-Mata did not object to the sentencing
enhancement at the time of sentencing, we review his sen-
tence only for plain error. See United States v. Rodriguez-
Lara, 421 F.3d 932, 948 (9th Cir. 2005). Plain error is “(1)
error, (2) that is plain, and (3) that affects substantial rights.”
Id. (quoting United States v. Ameline, 409 F.3d 1073, 1078
2
One of Guzman-Mata’s prior convictions was for illegal re-entry, for
which he served eight months’ imprisonment.
11944 UNITED STATES v. GUZMAN-MATA
(9th Cir. 2005) (en banc) (omitting citation and internal quota-
tion marks)). Even if Guzman-Mata shows plain error, we
may only reverse if the error “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at
948-49 (quoting Ameline, 409 F.3d at 1078 and omitting cita-
tion and internal quotation).

DISCUSSION

I. A Conviction under § 1324(a)(1) Qualifies as an “Alien
Smuggling Offense” under U.S.S.G. § 2L1.2(b)(1)(A).

We must decide whether Guzman-Mata’s prior conviction
under 8 U.S.C. § 1324(a)(1)(A)(ii)3 qualifies as an “alien
smuggling offense” for the purposes of U.S.S.G.
§ 2L1.2(b)(1)(A). To do so, we look to § 1324(a)(1)(A) and
compare its elements to the definition of an alien smuggling
offense under U.S.S.G. § 2L1.2(b)(1)(A)(vii) to determine
whether the “statutory definition substantially corresponds to
[the] ‘generic’ [offense].” See Taylor v. United States, 495
U.S. 575, 602 (1990).

[1] When interpreting the Sentencing Guidelines, we apply
the general rules of statutory construction. See United States
v. Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2007) (citations
omitted). Under these rules, “[t]he plain meaning of unambig-
uous language in a guideline provision controls.” Id.
“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the Con-
stitution 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 (1993).
3
Unless otherwise noted, citations or references to the United States
Code, which omit the title, are references to Title 8.
 UNITED STATES v. GUZMAN-MATA 11945
A. The Alien Smuggling Enhancement Applies when
the Defendant has been Previously Convicted of
Violating § 1324(a)(1)(A).

[2] We begin with the text of the relevant Guideline, which
provides, “If the defendant previously was deported, or
unlawfully remained in the United States, after . . . an alien
smuggling offense, increase [the offense level] by 16 levels.”
U.S.S.G. § 2L1.2(b)(1)(A)(vii) (emphasis added). The com-
mentary to the Guideline provides: “ ‘Alien smuggling
offense’ has the meaning given that term in section
101(a)(43)(N) of the Immigration and Nationality Act
[“INA”] (8 U.S.C. [§ ] 1101(a)(43)(N)).” U.S.S.G. § 2L1.2,
cmt. app. n.1(B)(i). The INA defines “alien smuggling
offense” as:

an offense described in paragraph (1)(A) or (2) of
section 1324(a) of this title (relating to alien smug-
gling), except in the case of a first offense for which
the alien has affirmatively shown that the alien com-
mitted the offense for the purpose of assisting, abet-
ting, or aiding only the alien’s spouse, child, or
parent (and no other individual) to violate a provi-
sion of this chapter[.]

§ 1101(a)(43)(N) (emphasis added).

[3] We find nothing ambiguous about the plain language of
the Guideline, its commentary, and the statutory definitions it
incorporates by reference. The 16-level alien smuggling
enhancement applies if there is a prior conviction for an
offense described in § 1324(a)(1)(A) or (2). See U.S.S.G.
§ 2L1.2(b)(1)(A)(vii) & cmt. app. note 1(B)(I);
§ 1101(a)(43)(N). In this case, the offense (for which
Guzman-Mata was previously convicted and for which the
district court applied the sentencing enhancement) was a vio-
lation of § 1324(a)(1)(A)(ii). Therefore, the alien smuggling
enhancement applies unless Guzman-Mata can show that he
11946 UNITED STATES v. GUZMAN-MATA
falls within its limited exception. That is, a prior conviction
under § 1324(a)(1)(A) will qualify as an alien smuggling
offense “except in the case of a first offense for which the
alien has affirmatively shown that the alien committed the
offense for the purpose of assisting, abetting, or aiding only
the alien’s spouse, child, or parent (and no other individual)
to violate a provision of this chapter[.]” See § 1101(a)(43)(N)
(emphasis added)).4

At sentencing, Guzman-Mata did not argue and made no
effort to show that his prior offense was a first offense that
involved only members of his family.5 In fact, Guzman-Mata
raised no objections regarding the district court’s adoption of
the PSR and imposition of the 16-level enhancement. Given
the plain language of the statute and Guzman-Mata’s failure
to show the applicability of the exception, it would appear
that the district court did not commit plain error in imposing
the enhancement under § 2L1.2(b)(1)(A)(vii).

B. The Family Exception is Not an Element of the
Generic Alien Smuggling Offense.

[4] Guzman-Mata argues against this fairly obvious conclu-
sion. Although the generic alien smuggling offense is defined
by express cross-reference to § 1324(a)(1)(A), Guzman-Mata
maintains that the district court nonetheless erred in conclud-
ing that § 1324(a)(1)(A) is categorically an alien smuggling
offense under U.S.S.G. § 2L1.2(b)(1)(A)(vii). Specifically, he
contends that the family caveat to the enhancement is not
merely an exception, but an element of the generic alien
smuggling offense. Because § 1324(a)(1)(A) criminalizes
4
The enhancement’s exception for first offenses involving “the alien’s
spouse, child, or parent (and no other individual)” is referred to herein as
the “family exception.”
5
On appeal, Guzman-Mata also does not contend that his prior convic-
tion, under 8 U.S.C. § 1324(a)(1)(A), was an offense committed to help
a spouse, parent, or child (and no one else).
 UNITED STATES v. GUZMAN-MATA 11947
alien smuggling regardless of whether it is a first offense
involving a spouse, parent, or child, Guzman-Mata argues that
the statute is too broad to categorically be an alien smuggling
offense (i.e. the generic offense contains an element that
§ 1324(a)(1)(A) does not). We disagree.

[5] To address Guzman-Mata’s argument, we must decide
whether the family exception is an element of the generic
alien smuggling offense. Guided by the Supreme Court’s
recent decision in Nijhawan v. Holder, ___ U.S. ___, 129 S.
Ct. 2294 (2009), we conclude that the family exception is not
an element of the generic offense, but “refers to the particular
circumstances in which [the defendant] committed [an alien
smuggling offense] on a particular occasion.” See Nijhawan,
129 S. Ct. at 2298, 2300-01.6

In Nijhawan, the Supreme Court held that the $10,000
monetary loss requirement for generic aggravated felony
offenses involving fraud or deceit was not an element of the
generic fraud or deceit crime, but referred “to the particular
circumstances in which an offender committed a (more
broadly defined) fraud or deceit crime on a particular occa-
sion.” Nijhawan, 129 S. Ct. at 2298. At issue in Nijhawan was
the immigration law that provides that any “alien who is con-
victed of an aggravated felony at any time after admission is
deportable.” Id. at 2297 (emphasis in original) (quoting 8
U.S.C. § 1227(a)(2)(A)(iii)). The definition of “aggravated
felony” included “ ‘an offense that . . . involves fraud or
deceit in which the loss to the victim or victims exceeds
$10,000.’ ” Id. (quoting § 1101(a)(43)(M)(i)). Nijhawan was
convicted of conspiracy to commit mail fraud, wire fraud,
bank fraud, and money laundering, in violation of 18 U.S.C.
§§ 371, 1341, 1343, 1344, and 1956(h). Id. Although none of
6
The Supreme Court’s holding in Nijhawan abrogates, in part, our prior
decisions in Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) and
Chang v. INS, 307 F.3d 1185 (9th Cir. 2002). Therefore, Guzman-Mata’s
reliance on these cases is of no value.
11948 UNITED STATES v. GUZMAN-MATA
the statutes underlying the fraud conviction required any find-
ing of a particular amount of victim loss, the petitioner stipu-
lated (at sentencing) that the loss exceeded $100 million. Id.

In the immigration proceedings that followed, the Govern-
ment claimed that the prior fraud conviction fell within the
definition of “aggravated felony,” and therefore, the petitioner
was deportable. Id. The petitioner argued that (1) the $10,000
monetary loss requirement was an element of the generic
fraud offense constituting an aggravated felony, (2) the stat-
utes under which he was previously convicted did not require
a finding of loss in excess of $10,000, and therefore (3) his
prior conviction was not categorically an aggravated felony
permitting his deportation. See generally id.

Rejecting the petitioner’s contention, the Court reasoned
that there are two ways to interpret statutory language in
§ 1101(a)(43) defining an aggravated felony (such as the
$10,000 monetary loss requirement of § 1101(a)(43)(M)(i)).
Id. at 2298-99. The first, which the Court called “categorical,”
refers to the generic crime (and its elements). Id. The second,
which the Court called “circumstance-specific,” “refer[s] to
the specific way in which an offender committed the crime on
a specific occasion.” Id. The Court stated that the “language
of the [$10,000 monetary loss] provision is consistent with a
circumstance-specific approach, explaining that the words
used to describe the monetary loss requirement “refer[red] to
the conduct involved in the commission of the offense of con-
viction, rather than to the elements of the offense.” Id. at 2301
(internal quotations and emphasis omitted).

In reaching this conclusion (and relevant to the present
case), the Supreme Court highlighted the language of
§ 1101(a)(43)(N) & (P) to illustrate the point that the “aggra-
vated felony” statute “lists certain other ‘offenses’ using lan-
guage that almost certainly does not refer to the generic
crimes but refers to specific circumstances.” Id. at 2300. As
its primary example of statutory language that does not refer
 UNITED STATES v. GUZMAN-MATA 11949
to an element of the generic offense, the Court considered the
exact language of the family exception at issue here: “except
in the case of a first offense for which the alien has affirma-
tively shown that the alien committed the offense for the pur-
pose of assisting, abetting, or aiding only the alien’s spouse,
child, or parent (and no other individual) to violate a provi-
sion of this chapter.” See id. at 2300 (alterations removed)
(quoting § 1101(a)(43)(P) and citing § 1101(a)(43)(N)). The
Court concluded:

The . . . exception cannot possibly refer to a generic
crime. That is because there is no such generic
crime; there is no criminal statute that contains any
such exception. Thus if the provision is to have any
meaning at all, the exception must refer to the partic-
ular circumstances in which an offender committed
the crime on a particular occasion.

Id. at 2300-01 (referring to § 1101(a)(43)(P) and also citing
§ 1101(a)(43)(N)).

[6] Indeed, if we construed the family exception categori-
cally as an element of the generic offense, the alien smuggling
enhancement would have no meaningful application. That is,
the enhancement applies only for a prior conviction of violat-
ing § 1324(a)(1)(A) or (2). Yet, none of the offenses
described in § 1324(a)(1)(A) or (2) contains any qualifying
language that would exclude a first offense involving only a
spouse, parent or child. Thus, to hold that the family excep-
tion should be read as an element of the generic alien smug-
gling offense would be to read the alien smuggling
enhancement into nonexistence. We conclude, therefore, that
the family exception of § 1101(a)(43)(N) is not an element of
the generic alien smuggling offense, and therefore need not be
applied categorically. Because the generic alien smuggling
offense is defined as a violation of § 1324(a)(1)(A) (the very
statute for which Guzman-Mata was previously convicted),
we hold that § 1324(a)(1)(A) is categorically an alien smug-
11950 UNITED STATES v. GUZMAN-MATA
gling offense under Taylor v. United States, 495 U.S. 575
(1990). Therefore, the district court did not plainly err in this
regard.

II. The Government Bears the Burden of Proving the
Applicability of the Alien Smuggling Enhancement,
But Guzman-Mata Was Required to Affirmatively
Show that He Fell Within the Family Exception.

A. The Plain Language of the Guideline Required
Guzman-Mata to Show that the Family Exception
Applied.

We reject Guzman-Mata’s contention that the alien smug-
gling enhancement must be construed to require the Govern-
ment to prove that a family exception does not apply. The
Fifth Circuit rejected the same arguments Guzman-Mata now
makes in United States v. Rabanal, 508 F.3d 741 (5th Cir.
2007). In Rabanal, the defendants similarly challenged a six-
teen level enhancement under U.S.S.G. § 2L1.2, for their
prior convictions under § 1324(a)(1)(A). Id. at 743. The
defendants argued that the government failed to prove that
their prior offenses involved aliens other than family, arguing
“that the Government, as the proponent of the sentencing
enhancement, has the burden of identifying the aliens previ-
ously transported in order to prove the prior convictions were
for alien smuggling offenses.” Id. In rejecting this argument,
the Fifth Circuit concluded:

The factual predicate the Government must establish
for a sentence enhancement under
§ 2L1.2(b)(1)(A)(vii) and the cross-reference to
§ 1101(a)(43)(N) is a prior conviction for an offense
under 8 U.S.C. § 1324(a)(1)(A) or (2). The burden is
on the defendant to ‘affirmatively show [ ]’ that the
prior offense was a first offense involving only qual-
ifying family members.
 UNITED STATES v. GUZMAN-MATA 11951
Id. at 743. We agree with the Fifth Circuit.

“The government bears the burden of proving, by a prepon-
derance of the evidence, the facts necessary to enhance a
defendant’s offense level under the Guidelines.” United States
v. Burnett, 16 F.3d 358, 361 (9th Cir. 1994) (citation omitted);
see also Ameline, 409 F.3d at 1085-86. The Government
meets this initial burden of proving that the alien smuggling
enhancement applies by showing the defendant has a prior
conviction under § 1324(a)(1)(A). See U.S.S.G.
§ 2L1.2(b)(1)(A)(vii) & cmt. app. note 1(B)(I);
§ 1101(a)(43)(N); United States v. Allen, 434 F.3d 1166, 1173
(9th Cir. 2006) (“[T]he burden of proof falls on the party
seeking to adjust the offense level.”) (citation omitted). Here,
there is no dispute that the Government proved that Guzman-
Mata was previously convicted of violating 8 U.S.C.
§ 1324(a)(1)(A).7

[7] Guzman-Mata correctly states that the Government did
not prove that the family exception did not apply. However,
to avoid the enhancement, the Guideline unquestionably
requires the defendant (not the Government) to affirmatively
show that the family exception applies. See § 1101(a)(43)(N).
The Government “need not negative the matter of an excep-
tion made by a proviso or other distinct clause.” United States
v. Gravenmeir, 121 F.3d 526, 528 (9th Cir. 1997). Further, “a
defendant who relies upon an exception to a statute made by
a proviso or distinct clause, whether in the same section of the
7
The uncontroverted PSR reported the conviction and Guzman-Mata
made no objection. The district court was entitled to rely on the unchal-
lenged PSR at sentencing to find that the facts underlying the sentence
enhancement have been established. United States v. Romero-Rendon, 220
F.3d 1159, 1161 (9th Cir. 2000) (citing United States v. Marin-Cuevas,
147 F.3d 889, 895 (9th Cir. 1998)). Furthermore, a PSR that specifies the
statute of conviction is sufficient to satisfy the government’s burden of
proving a sentence enhancement. Romero-Rendon, 220 F.3d at 1164 (if an
uncontroverted PSR specifies the statute of conviction, additional evi-
dence is not necessary).
11952 UNITED STATES v. GUZMAN-MATA
statute or elsewhere, has the burden of establishing and show-
ing that he comes within the exception.” See United States v.
Freter, 31 F.3d 783, 788 (9th Cir. 1994) (internal citations
and quotation marks omitted).

[8] In this case, the family exception to the alien smuggling
enhancement is made by a distinct clause in § 1101(a)(43)(N).
The Guideline unequivocally creates an exception and, there-
fore, the defendant bears the burden of showing that he comes
within it. Given the additional statutory language requiring
the defendant to “affirmatively show” that his prior offense
was committed only to help family, we have no doubt that the
burden rested on Guzman-Mata to prove that the family
exception applied to his case—a burden he did not make any
attempt to meet.

B. The Family Exception Does Not Impermissibly
Shift the Burden of Proof.

We also reject Guzman-Mata’s argument that the family
exception impermissibly shifts the burden of proof on the
applicability of the alien smuggling enhancement. We reiter-
ate the general rule that “the burden of proof falls on the party
seeking to adjust the offense level.” See Allen, 434 F.3d at
1173. However, “[t]he burden of proof includes both the bur-
den of persuasion and the burden of production.” Black’s Law
Dictionary 209 (8th ed. 2004). In Freter, with regard to the
crime of conviction, when we held that the defendant gener-
ally bears the burden to prove an affirmative defense, we clar-
ified:

[W]e do not intend to imply that the government’s
ultimate burden of proving . . . every fact necessary
to constitute the offense is altered. Instead, we hold
only that if the defendant wishes to rely on this
exception, he has the initial burden of going forward
with sufficient evidence to raise the exception as an
issue. Once the defendant has satisfied his burden of
 UNITED STATES v. GUZMAN-MATA 11953
production with respect to the affirmative defense,
the prosecution must prove the inapplicability of the
defense . . . .

Freter, 31 F.3d at 789 n.6 (citations omitted). We find no rea-
son why the rule should be stricter in the sentencing context.
Thus, the government has the initial burden of production and
ultimate burden of persuasion, but once it makes a prima facie
case, the burden of production shifts to the defendant for any
adjustment he is seeking. See also United States v. Bruce, 394
F.3d 1215, 1222-23 (9th Cir. 2005) (discussing the burden of
proof, persuasion, and production in a criminal prosecution
where the defendant asserted “Indian status” as a defense to
an alleged crime governed by 18 U.S.C. § 1152). We there-
fore hold that, to satisfy the burden of production on a sen-
tencing adjustment he is seeking, a defendant must “come
forward with enough evidence . . . to permit a fact-finder to
decide the issue in her favor.” Id. at 1223. After a defendant
meets this burden, “the government retains the ultimate bur-
den of persuasion . . . to persuade the trier of fact of the truth
of the proposition . . . that the exception she claims is inappli-
cable.” See id. at 1223 (internal citations and quotation marks
omitted).

In this case, for the enhancement to apply, the government
had to make a prima facie case that the defendant had a prior
alien smuggling offense as defined by § 1324(a)(1)(A). It did
this by presenting the uncontroverted PSR showing that
Guzman-Mata was convicted of § 1324(a)(1)(A)(ii). See
Romero-Rendon, 220 F.3d at 1164 (uncontroverted PSR stat-
ing the statute of conviction requires no further evidence).
The statute then shifts the burden of production to the defen-
dant to offer evidence that the exception applies.
§ 1101(a)(43)(N). If the defendant satisfies his burden of pro-
duction (which Guzman-Mata made no attempt to do in this
case), the government retains the ultimate burden of persua-
sion and must then prove that the exception is inapplicable.
Thus, although the family exception expressly requires the
11954 UNITED STATES v. GUZMAN-MATA
defendant to affirmatively show that he comes within its
bounds, it cannot be said that this requirement impermissibly
shifts the “burden of proof” regarding the applicability of the
alien smuggling enhancement.

Our decision in Allen is distinguishable from the present
case. In that case, the defendant pleaded guilty to a counter-
feiting offense and received an enhancement (under U.S.S.G.
§ 2B5.1(b)(2)(A)) for having “manufactured or produced any
counterfeit obligation or security of the United States, or pos-
sessed or had custody of or control over a counterfeiting
device or materials used for counterfeiting.” 434 F.3d at
1168-69. Note 4 to § 2B5.1(b)(2)(A) states that the enhance-
ment “does not apply to persons who produce items that are
so obviously counterfeit that they are unlikely to be accepted
even if subjected to only minimal scrutiny.” Id. at 1170 (quot-
ing U.S.S.G. § 2B5.1 cmt. n.4) (internal quotation marks
omitted). The defendant argued that the government failed to
prove that the items were not obviously counterfeit. We
rejected the government’s counter argument that Note 4 cre-
ated an exception to the enhancement for which the defendant
bore the burden of proof. We reasoned that the provision stat-
ing that the enhancement “does not apply to transparently
counterfeit currency [is] the equivalent of stating that the sub-
section applies only to notes that could be taken as real.” Id.
at 1174 (internal quotation marks omitted). We concluded,
“As the defendant bears no burden to establish that circum-
stances exist in which [the enhancement] does apply, he bears
no burden to demonstrate that the counterfeiting devices and
materials he possessed produced or could produce realistic
counterfeits.” Id. at 1174.

We do not read our decision in Allen to require the Govern-
ment to prove the negative of an express exception to an oth-
erwise applicable sentencing enhancement. The specific
language in the notes to U.S.S.G. § 2B5.1(b)(2)(A) controlled
the outcome in Allen. Unlike the present case, the notes at
issue in Allen did not clearly create an exception, but rather
 UNITED STATES v. GUZMAN-MATA 11955
clarified the scope of the predicate facts the Government must
establish to show the enhancement’s applicability. See Allen,
434 F.3d at 1174; U.S.S.G. § 2B5.1 cmt. n. 4. Not only does
the Guideline addressed in Allen not create an express excep-
tion, it also did not ascribe any affirmative duty to the defen-
dant to show that he qualified for the exception. In stark
contrast, the Guideline in the present case clearly creates an
exception and expressly places the burden squarely on the
defendant to show that the exception applies.

Guzman-Mata also argues that Taylor prohibits him from
presenting “extra-record facts” to prove that he falls within
the family exception, but that he nonetheless met his burden
of proof on the applicability of the family exception if the
record of conviction is inconclusive (as to facts supporting the
applicability of the exception) (citing Sandoval-Lua v. Gon-
zales, 499 F.3d 1121, 1131-32 (9th Cir. 2007)). This argument
is without merit. First, it incorrectly presumes that the statute
under which Guzman-Mata was previously convicted
(§ 1324(a)(1)(A)) is too broad to categorically be an alien
smuggling offense under the Guideline. As we held above,
Guzman-Mata’s statute of prior conviction is, in fact, the
generic alien smuggling offense. Therefore, the Taylor bar to
inquiry into the underlying facts of a prior conviction simply
has no application.

Second, as we held earlier, the alien smuggling enhance-
ment expressly permits inquiry into the defendant’s prior con-
duct (as opposed to defining the applicability of the
enhancement purely “in terms of offenses and their ele-
ments”). See United States v. Martinez-Candejas, 347 F.3d
853, 859 (10th Cir. 2003) (concluding that the Taylor categor-
ical approach is not applicable to enhancements based on
prior alien smuggling offenses which the defendant could
negate by showing he smuggled only family members)). That
is, the Guideline permits a defendant to avoid the enhance-
ment by affirmatively showing that his prior conduct miti-
gates the seriousness of his prior conviction. In this case,
11956 UNITED STATES v. GUZMAN-MATA
Guzman-Mata was both entitled and required to introduce evi-
dence to support any contention that he qualified for the fam-
ily exception.

Third (and most important on plain error review), Guzman-
Mata’s argument ignores the fact that he (1) made no objec-
tion to the alien smuggling enhancement at sentencing, (2) did
not argue that his prior conduct made the exception applica-
ble, and (3) presented no evidence that his alien smuggling
offense was committed to help only members of his family.
Where Guzman-Mata’s record of conviction is conclusive as
to the fact that he was previously convicted for violating
§ 1324(a)(1)(A), it cannot be said that the district court com-
mitted plain error.

CONCLUSION

[9] Guzman-Mata’s prior conviction under
§ 1324(a)(1)(A)(ii) is an alien smuggling offense as defined
under the relevant Guideline. See U.S.S.G.
§ 2L1.2(b)(1)(A)(vii) & cmt. app. note 1(B)(I);
§ 1101(a)(43)(N). The family exception to the enhancement is
not an element of the generic alien smuggling offense, but is
an affirmative defense that turns on the specific circumstances
in which the prior offense was committed. Guzman-Mata had
the burden of showing that the exception applied, but he (1)
failed to object to the enhancement, (2) made no argument
that he fell within the family exception, and (3) presented no
evidence that the exception applied. Accordingly, we con-
clude that the district court did not err (let alone commit plain
error) in imposing the 16-level enhancement.

AFFIRMED.