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United States v. Martinez

United States Court of Appeals, Ninth Circuit

September 15, 2017

United States of America, Plaintiff-Appellee,
v.
Virginio Hernandez Martinez, AKA Virginia Hernandez, AKA Chris Martinez, Defendant-Appellant.

          Argued and Submitted August 31, 2017 Pasadena, California

         Appeal from the United States District Court No. 8:16-cr-00122-DOC-1 for the Central District of California David O. Carter, District Judge, Presiding

          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.

         SUMMARY [**]

         Criminal Law

         The panel vacated a sentence for illegal reentry, in a case in which the district court applied an enhancement under U.S.S.G. § 2L1.2(b)(2)(B), which, as amended in 2016, applies "[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."

         The defendant, who sustained a felony conviction before he was first deported, was sentenced to only one year of incarceration before his first deportation order; the sentence was increased to three years of incarceration when his probation was revoked after he returned to the United States. The panel held that when viewed in its historical context, the amended § 2L1.2(b)(2)(B) is best read as carrying forward the Sentencing Commission's prior, unambiguous conclusion that a qualifying sentence must be imposed before the defendant's first order of deportation or removal. The panel concluded that because the defendant's qualifying prior felony conviction did not incur a sentence of two years or more until after he had been deported for the first time, he did not qualify for an enhancement under § 2L1.2(b)(2)(B) (2016). The panel remanded for resentencing.

          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. ยง 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 ...


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