Prior Conviction Counts for Enhancement

A defendant sentenced for illegal reentry into the U.S. as an illegal alien cannot overturn his 30-month sentence with a claim that the sentencing court could not apply a 12-level enhancement for defendant’s 1997 felony conviction for unlawful transport of aliens; the 4^th Circuit says the sentencing judge had discretion to sentence defendant for up to five years and the sentence is affirmed.

Defendant’s 1997 conviction under 8 U.S.C. § 1324(a)(1)(A)(ii) carried a statutory five-year maximum prison term. However, the federal sentencing guidelines range for the 1997 conviction was calculated as zero to six months, and he was sentenced to only 107 days in prison. Defendant was removed to El Salvador on Aug. 27, 1997.

In 2012, defendant pleaded guilty to a felony in violation of 8 U.S.C. §§1326(a) and (b)(1). Defendant objected to the presentence report, arguing that under U.S. v. Simmons, 649 F.3d 237 (4^th Cir. 2011), his 1997 conviction did not constitute a felony for purposes of USSG § 2L1.2(b)(1) because he could not have received a sentence of more than one year under the mandatory sentencing guidelines in effect in 1997.

The district court denied the objection, reasoning that Simmons had expressly distinguished North Carolina’s legislatively mandated sentencing regime from a guidelines system. The court held that five-year statutory maximum applied, but it credited defendant for a three-level reduction for acceptance of responsibility, and sentenced him to 30 months’ imprisonment under a guidelines range of 27 to 33 months.

Defendant likens the pre-Booker federal sentencing guidelines to the North Carolina Structured Sentencing Act and contends that under Simmons, his 1997 conviction was not punishable by a prison term exceeding one year because the top of his mandatory guidelines range for that conviction was six months.

Even if we were inclined to extend our holding in Simmons in the manner defendant requests, we would be precluded from doing so by the decision in U.S. v. Rodriquez, 553 U.S. 377 (2008). In Simmons, we distinguished the mandatory guidelines system at issue in Rodriquez from the legislatively mandated system that North Carolina adopted. Rodriquez and our interpretation of it in Simmons foreclose the approach defendant asks us to adopt.

The federal sentencing guidelines – whether mandatory or advisory – cannot change a defendant’s offense of conviction; that has been defined by Congress. Defendant was convicted of unlawfully transporting aliens in violation of § 1324(a)(1)(B)(ii). Congress set the maximum term for that offense at five years. That term is determinative of whether he committed a predicate felony under USSG § 2L1.2(b)(1)(A)(vii). The district court here did not err in imposing a 12-level enhancement for the 1997 conviction.

Sentence affirmed.

U.S. v. Bercian-Flores (Wynn) No. 13-4504, May 14, 2015; USDC at Charlotte, N.C. (Whitney) Richard L. Brown Jr. for appellant; Amy E. Ray, AUSA. VLW 015-2-080, 17 pp.