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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Lopez’s probation was revoked for his failure to report to his state probation officer after his 2006

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 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.

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).

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.

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 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.

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.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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