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defendantstatuteappealpleacorporationfelonydeportationobjectionoverruledsentencing guidelines
defendantstatuteappealpleacorporationfelonydeportationobjectionoverruledsentencing guidelines

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Reyna-Espinosa; U.S. v.

Facts

Defendant was arrested while attempting to transport a firearm into Mexico; he then attempted to carjack a government vehicle. Defendant pleaded guilty to being an illegal alien in unlawful possession of a firearm, in violation of 18 U.S.C.S. 922(g)(5) and was sentenced and deported. Thereafter, defendant was arrested by the border patrol and indicted for being found in the United States unlawfully after arrest and deportation, in violation of 8 U.S.C.S. 1326(a) and (b)(2). Defendant pleaded guilty pursuant to a plea agreement which provided that the government would recommend a two-level adjustment for acceptance of responsibility and a sentence at the low end of the applicable guideline range. A presentence report recommended an increased level, which the district court accepted. Defendant appealed and the district court overruled the objection.

Defendant was arrested while attempting to transport a firearm into Mexico; he then attempted to carjack a government vehicle. Defendant pleaded guilty to being an illegal alien in unlawful possession of a firearm, in violation of 18 U.S.C.S. 922(g)(5) and was sentenced and deported. Thereafter, defendant was arrested by the border patrol and indicted for being found in the United States unlawfully after arrest and deportation, in violation of 8 U.S.C.S. 1326(a) and (b)(2). Defendant pleaded guilty pursuant to a plea agreement which provided that the government would recommend a two-level adjustment for acceptance of responsibility and a sentence at the low end of the applicable guideline range. A presentence report recommended an increased level, which the district court accepted. Defendant appealed and the district court overruled the objection.

Issue

The question before us is whether a conviction for unlawful possession of a firearm by an alien under 18 U.S.C. 922(g)(5) constitutes an 'aggravated felony' for purposes of increasing the defendant's offense level by 16 levels pursuant to U.S.S.G. 2L1.2(b)(2).

The question before us is whether a conviction for unlawful possession of a firearm by an alien under 18 U.S.C. 922(g)(5) constitutes an 'aggravated felony' for purposes of increasing the defendant's offense level by 16 levels pursuant to U.S.S.G. 2L1.2(b)(2).

Rule

Section 2L1.2(a) of the Guidelines provides for a base offense level of 8 for an alien who unlawfully enters or remains in the United States following arrest and deportation, in violation of 8 U.S.C. 1326(a) and 1326(b)(2). Subsection 2L1.2(b) provides for an enhancement of the base offense level if the alien was previously deported after a conviction for a felony or aggravated felony.

Section 2L1.2(a) of the Guidelines provides for a base offense level of 8 for an alien who unlawfully enters or remains in the United States following arrest and deportation, in violation of 8 U.S.C. 1326(a) and 1326(b)(2). Subsection 2L1.2(b) provides for an enhancement of the base offense level if the alien was previously deported after a conviction for a felony or aggravated felony.

Analysis

The court agreed with the Ninth and Seventh Circuits that the definition of 'aggravated felony' for purposes of 2L1.2(b)(2) is limited to the felonies expressly listed in application note 7. The court concluded that the reference to 18 U.S.C. 1101(a)(43) in the Commentary to U.S.S.G. 2L1.2 does not constitute a complete incorporation of that statute. Therefore, a conviction under 18 U.S.C. 922(g)(5) is not an aggravated felony for purposes of increasing a defendant's offense level under U.S.S.G. 2L1.2(b).

The court agreed with the Ninth and Seventh Circuits that the definition of 'aggravated felony' for purposes of 2L1.2(b)(2) is limited to the felonies expressly listed in application note 7. The court concluded that the reference to 18 U.S.C. 1101(a)(43) in the Commentary to U.S.S.G. 2L1.2 does not constitute a complete incorporation of that statute. Therefore, a conviction under 18 U.S.C. 922(g)(5) is not an aggravated felony for purposes of increasing a defendant's offense level under U.S.S.G. 2L1.2(b).

Conclusion

The court vacated defendant's sentence and remanded to the district court for resentencing.

The court vacated defendant's sentence and remanded to the district court for resentencing.

Who won?

Defendant prevailed in the case because the court found that his prior conviction for unlawful possession of a firearm by an illegal alien did not qualify as an aggravated felony under the sentencing guidelines, leading to the vacating of the increased sentence.

Defendant prevailed in the case because the court found that his prior conviction for unlawful possession of a firearm by an illegal alien did not qualify as an aggravated felony under the sentencing guidelines, leading to the vacating of the increased sentence.

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