U.S. v. Lopez

• Decision Date: 04 March 2011
• Docket Number: No. 10–1470.,10–1470.
• Citation: 634 F.3d 948
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Cruz LOPEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

634 F.3d 948

UNITED STATES of America, Plaintiff–Appellee,

v.Cruz LOPEZ, Defendant–Appellant.

No. 10–1470.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 5, 2010.Decided March 4, 2011.

Jennie Levin (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Carol A. Brook, Attorney, Office of the Federal Defender Program, Chicago, IL, Paul E. Gaziano (argued), Attorney, Federal Defender Program, Rockford, IL, for Defendant–Appellant.Before EVANS, SYKES, and HAMILTON, Circuit Judges.HAMILTON, 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 imposed 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 trafficking 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 Department 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 probation 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 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 unlawfully remained in the United States, after—

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months ... increase by 16 levels;

(B) a conviction for a felony drug trafficking offense 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 deported and illegally reentered, but before he was indicted, 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 imposition 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 sentence 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 sentence 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 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 enhancement for the commission of an aggravated felony prior to deportation (not specifically for an over thirteen-month sentence imposed for a drug trafficking conviction). See U.S.S.G. § 2L1.2(b)(1)(A) (1997). Under that version of the guideline, an “aggravated felony” included “a theft offense ... for which the term of imprisonment [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 probation (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 sentenced 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 conviction 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 purposes 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 Sentencing Guidelines. Defendants who reenter the country illegally after having committed more serious drug trafficking 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 trafficking 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 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 probation 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 arguments 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...