United States v. Martinez

• Decision Date: 15 September 2017
• Docket Number: No. 17-50026.,17-50026.
• Citation: 870 F.3d 1163
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Virginio Hernandez MARTINEZ, AKA Virginia Hernandez, AKA Chris Martinez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

870 F.3d 1163

UNITED STATES of America, Plaintiff-Appellee,

v.Virginio Hernandez MARTINEZ, AKA Virginia Hernandez, AKA Chris Martinez, Defendant-Appellant.

No. 17-50026.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 31, 2017 Pasadena, California

Filed September 15, 2017

James H. Locklin (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

Joseph T. McNally (argued), Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Sandra R. Brown, Acting United States Attorney; United States Attorney's Office, Santa Ana, California; for Plaintiff-Appellee.

Before: William A. Fletcher and Sandra S. Ikuta, Circuit Judges, and Sarah Evans Barker,^* District Judge.

OPINION

IKUTA, Circuit Judge:

Virginio Hernandez Martinez pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. At sentencing, the district court applied an eight-level enhancement under § 2L1.2(b)(2)(B) of the 2016 United States Sentencing Guidelines ("U.S.S.G.").¹ This enhancement is applicable "[i]f, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained ... a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more." U.S.S.G. § 2L1.2(b)(2)(B) (2016). Hernandez Martinez argues that the district court erred in applying this enhancement. Although Hernandez Martinez sustained a felony conviction before he was first ordered deported, he was sentenced to only one year of incarceration before his first deportation order; the sentence was increased to three years of incarceration after he returned to the United States. We conclude that Hernandez Martinez's conviction did not qualify for the eight-level enhancement under § 2L1.2(b)(2)(B), and we therefore vacate the sentence and remand for resentencing.

I

Virginio Hernandez Martinez is a native and citizen of Mexico. In 2003, California authorities arrested and charged him with felony lewd acts with a child. He pleaded guilty, and the state court sentenced him to five years of probation and 365 days in jail.

In June 2004, Hernandez Martinez was deported to Mexico for the first time. The state court revoked his probation the following month when Hernandez Martinez failed to report to his probation officer. He returned to the United States without authorization in May 2005, and California sentenced him to three years of incarceration for the revoked probation term in March 2006.

After serving the state sentence, Hernandez Martinez pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326 and was sentenced to a year and a day in custody. The government deported him again at the end of that sentence, but he again returned to the United States without authorization in March 2014. Approximately two years later, California charged Hernandez Martinez with a misdemeanor drug offense and a bicycle equipment infraction; he pleaded guilty and was sentenced to four days in jail.

After completing his 2016 state sentence, Hernandez Martinez was again arrested and charged with felony illegal reentry under § 1326, to which he pleaded guilty. At the sentencing hearing for the illegal reentry offense, the district court used the applicable 2016 Guidelines to calculate a base offense level of eight. See U.S.S.G. § 2L1.2(a) (2016). The district court also applied two specific offense characteristic enhancements. First, it imposed a four-level enhancement because Hernandez Martinez had previously sustained a felony illegal reentry conviction. See id. § 2L1.2(b)(1)(A). The district court then imposed an eight-level enhancement under § 2L1.2(b)(2)(B), ruling that Hernandez Martinez's California conviction for felony lewd acts with a child was "a conviction for a felony offense (other than an illegal reentry offense)" imposed "before the defendant was ordered deported or ordered removed from the United States for the first time" and "for which the sentence imposed was two years or more." Id . § 2L1.2(b)(2)(B). Hernandez Martinez objected to this eight-level enhancement both in writing and at the sentencing hearing. In his view, the California conviction did not trigger the enhancement because he had been sentenced to only a year of prison for felony lewd acts with a child before his first deportation order in 2004; the remainder of the sentence for that offense was imposed in March 2006, after he returned to the United States.

Notwithstanding this objection, the district court applied the eight-level enhancement, resulting in an adjusted offense level of 20. The district court gave Hernandez Martinez a three-level reduction for acceptance of responsibility and reduced Hernandez Martinez's criminal history to Category I. The resulting advisory sentencing range was 24 to 30 months, see id. ch. 5, pt. A, and the district court imposed a below-Guidelines 18-month sentence.

Hernandez Martinez filed a timely appeal challenging the district court's interpretation of § 2L1.2(b)(2)(B). We have jurisdiction under 18 U.S.C. § 3742, and our review of the district court's interpretation of the sentencing guidelines is de novo. United States v. Lee , 821 F.3d 1124, 1126 (9th Cir. 2016).

II

"[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range." Gall v. United States , 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). "Although the Sentencing Guidelines are merely advisory," United States v. Joey , 845 F.3d 1291, 1295 (9th Cir. 2017), "[a] mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing," United States v. Munoz-Camarena , 631 F.3d 1028, 1030 (9th Cir. 2011).

We interpret the Sentencing Guidelines using the ordinary tools of statutory interpretation. See United States v. Cruz-Gramajo , 570 F.3d 1162, 1167 (9th Cir. 2009). "As with the interpretation of legal texts generally, our search for the Sentencing Commission's intent will most often begin and end with the text and structure of the Guidelines." Joey , 845 F.3d at 1297 n.8 (internal quotation marks omitted). We consider not only a guideline's text, but also the Commission's commentary interpreting or explaining the text, which "is authoritative unless it violates the Constitution 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, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). We may also look to the provision's history and purpose, Abramski v. United States , ––– U.S. ––––, 134 S.Ct. 2259, 2267, 189 L.Ed.2d 262 (2014), such as by consulting "the Commission's statements of reason" for a particular amendment, United States v. Ornelas , 825 F.3d 548, 554 (9th Cir. 2016).

A

Section 2L1.2(b)(2)(B) of the 2016 Guidelines Manual provides:

(b) Specific Offense Characteristics ...

(2) (Apply the Greatest) If, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained—...

(B) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more, increase by 8 levels[.]

U.S.S.G. § 2L1.2(b)(2)(B) (2016) (emphasis added). As defined in the application notes, the term "sentence imposed" has the same meaning as "sentence of imprisonment" in Chapter 4, id . § 2L1.2 cmt. n.2, which is "a sentence of incarceration and refers to the maximum sentence imposed," id. § 4A1.2(b)(1). The application notes for § 2L1.2 further provide that "[t]he length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release." Id. § 2L1.2 cmt. n.2.

The question presented here is whether the phrase "sentenced imposed" includes terms of imprisonment that were imposed after the defendant's first deportation order when assessing the defendant's eligibility for the § 2L1.2(b)(2)(B) enhancement. On that question, § 2L1.2(b)(2)(B) is "susceptible to more than one reasonable interpretation." See Arizona v. Tohono O'odham Nation , 818 F.3d 549, 556 (9th Cir. 2016). Hernandez Martinez argues that § 2L1.2(b)(2)(B) applies only to a defendant who has sustained a conviction and received a two-year sentence before the defendant's first order of deportation or removal. The government, by contrast, argues that the enhancement applies to a defendant regardless of when the qualifying sentence was imposed because the language imposing the temporal limitation ("before the defendant was ordered deported ... for the first time") addresses only when the conviction is sustained, not when the sentence is imposed. Cf. United States v. Nader , 542 F.3d 713, 717 (9th Cir. 2008) (applying the presumption that Congress places modifying language as close as possible to the word modified).

Because the text of § 2L1.2(b)(2)(B), standing alone, is susceptible of either Hernandez Martinez's or the government's interpretation, we must consider the provision's language in light of its history and purpose.

B

We begin by considering § 2L1.2(b)(2)(B) in its historical context. Courts have faced the same ambiguity confronting us today in a predecessor to § 2L1.2(b)(2). Before 2012, this issue divided the courts of appeals. In relevant part, the pre-2012 version of § 2L1.2(b) provided:

(b) Specific Offense Characteristic

(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 if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points[.]

U.S.S.G. §...