___________ No. 95-3162

___________ United States of America, * * Plaintiff-Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Jesus Mendoza-Alvarez, * * Defendant-Appellant. *

___________ Submitted: February 13, 1996 Filed: March 14, 1996

___________ Before McMILLIAN, LAY and HANSEN, Circuit Judges.

___________ LAY, Circuit Judge.
Jesus Mendoza-Alvarez entered a guil ty plea to illegal reentry after deportation in violat ion of 8 U.S.C. § 1326(a) and being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). Mendoza

Alvarez received two concurrent twenty-four-month terms of imprisonment. On ap peal, Mendoza-Alvarez asserts the government violated its ple a agreement and that the district court erred in applying the Sentencin g Guidelines. We reverse and remand for resentencing.
U.S.S.G. § 2L1.2(b)(1)

Mendoza-Alvarez was sentenced to twenty-four months upon a plea o f guilty for illegal reentry after deportation. H e does not dispute that he
was deported from the United States prior to 1987. The base level for thi s offense was eight; however, the district court i ncreased the offense level by four levels under

### At t he sentencing hearing, the defendant objected to th e 1 

### enhancement on the ground that the prior conviction the government relied upon was deemed to be a misdemeanor under state law. Th e government urged and the distr ict court agreed that the law of the state should not control in defining a felony, and that th e Sentencing Guidelines define any offense to be a felony if th e offense was punishable by a term of imprisonment in excess of one year, regardless of the actual sentence imposed. See U.S.S.G
. § 4A1. 2(o) (defining felony for purposes of calculating crimina l history). The defendant relie d on United States v. Brown , 33 F.3d 1014, 1018 (8th Cir. 1994), which looked to California law t o determine whether a crime was a felony for purposes of applying a twenty-year mandatory minimum for previously convicted dru g felonies under 21 U.S.C. § 841. -2- § 2L1.2(b)(1), which requires an increase "[i]f the defendant previously
was deported after a conviction for a felony, other than a felony involvin g viola tion of the immigration laws." The predicate felony on which th e govern ment relied in seeking this enhancement was the defendant's 198 7 conviction for possession of concentrated cannabis in California. However , the defendant urges that he was not convicted of a felony but only for a misdemeanor. We need not resolve this dispute because we findno evidence 1 that the defendant was ever deported following his 1987 conviction.

In finding that the defendant had been deported following hi s con viction, the district court relied on a generalized statement of th e California court that it released the defendant to the INS for "deportatio n processi ng." The government conceded it offered no proof that th e def endant was ever deported. In fact, the record showed that (1) th e California court plac ed Mendoza-Alvarez on probation to the court pending "verificationthat the defendant has been deported," and (2) the INS, on Apr il 19, 1988, "released" the defendant because of its heavy caseload , stating t hat the defendant wanted to travel to Iowa to see his attorne y since he was "claiming 13 years residence with o nly a brief period outside of the U.S."

The government points to evidence that the defendant voluntaril y returned to Mexico because he personally appeared at

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the American Consular office in Chihuahua, Mexico, on April 29, 1991, to be interviewed for animmigration visa. The government told the district court it did not offer proof of deportation beca use it did not consider it to be at issue. The government conceded that it did not know of an y deportation order. On this basis we find the evidence totally deficient
as to proof of deportation. The fact that the defendant may hav e voluntarily returned to Mexico after his California conviction is not proo f of deportation. We therefore conclude that the district court erred i n applying a four-level enhancement under § 2L1.2(b)(1).
U.S.S.G. § 2K2.1(b)(2)
Mendoza-Alvarez also challenges the district court's failure to grant himan eight-level reduction under U.S.S.G. § 2K2.1(b)(2) for hi s conv iction for possession of a firearm by an illegal alien. Sectio n 2K2.1(b)(2) of the Guidelines provides for a red uction "[i]f the defendant

. . . possessed all ammunition and firearms solely for lawful sportin g purpos es or collection, and did not unlawfully discharge or otherwis e unl awfullyuse such firearms or ammunition." This reduction was denie d because Mendoza-Alvarez was apprehended driving his car with a loaded rifl e in violation of Iowa Code Ann. § 483A.36 (West Supp. 1995).

Mendo za-Alvarez claims he possessed the rifle solely for sportin g purposes, had been hu nting the morning police stopped his automobile, and was in a hurry to get to work. He also presente d his Iowa hunting license and affidavits from Iowa residents confirming that he used the rifle for hunt ing rabbits. In an oral plea agreement, the government promise d Mendoza-Alvarez it would remain silent on his eligibility for the reductio n und er the Guidelines at the sentencing hearing except to ensure factua l accuracies about Mend oza-Alvarez's possession of the rifle. Nonetheless, when the d istrict court asked the government for its position on thi s issue, the government's lawyer responded that

### The government relies on United States v. Kissinger , 986 F.2d 2 

### 1244 (8th Cir. 1993), for the proposition that a violation o f state law will automatically defeat a § 2K2.1(b)(2) reduction. Th e court noted that "Kissinger had not obtained a permit to carry the gun in SouthDakota," but this was only one factor in upholding th e district court's factual finding that the defendant possessed the firearmfor gun for "personal protection" rather than a lawfu l sporting or collection purpose. Id. at 1246. -4- "under th e state of the law, the Court has no discretion. [Sectio n 2K2.1(b) (2)] does not apply in this case. . . . [I]f there's anythin g about it that's illegal, if they're shooting out street lights with th e gun, tha t will destroy the lawful possession for sporting use . . . . " Sent. Tran. at 15. The district court then denied Mendoza-Alvarez th e reduction under § 2K2.1(b)(2).
By failing to remain silent, the government clearly violated it s oral plea agreement with M endoza-Alvarez. See Margalli-Olvera v. INS , 43 F.3d 345, 354 (8th Cir. 1994) (promise to remain silent by U.S. attorney bindin g on and breached by INS); United States v. McCray , 849 F.2d 304, 305 (8th Cir. 1 988) (per curiam). At oral argument, government's counse l apolo gized, but stated he felt compelled to do so because the distric t court aske d the government for its views on whether the defendant wa s entitl ed to a reduction. Nonetheless, the government contends it s violation of the pleaagreement did not prejudice Mendoza-Alvarez because denial of the § 2K2.1(b)(2) reduction was compelled as a matter of law
. We disagree.
Mendoza-Alvarez has presented eviden ce from which a reasonable trier of fact could conclude that he "possessed all . . . firearms solely fo r lawful sporting purposes," i.e., hunting pursuant to a state huntin g licens e. There is also no evidence that Mendoza-Alvarez "unlawfull y discharge[d]" his rifle. Thus, the sole issue i s whether Mendoza-Alvarez, in transporting a loa ded firearm in violation of Iowa law, did "otherwise
un lawfullyuse" his firearm so as to preclude application of th e § 2K2.1(b)(2) reduction. 2

### -5- We conclu de that transporting a firearm in violation of auto safety laws does not constitute, per se , an "otherwise unlawful use" of a firearm under the 2K2.1(b)(2). As the Supreme Court has recently explained, "[t]h e word 'use' [as applied under 18 U.S.C. § 924(c)] must be given it s 'ordinary or natural' meaning, a meaning variously defined as 'to convert to one's service,' 'to employ,' 'to avail oneself of,' and 'to carry out a purpose or action by means of.' . . . These va rious definitions of 'use' imply action and implementation." Bailey v. United States , 116 S. Ct. 501 , 506 (1995) (citations and alterations omitted). Based on this ordinar y mea ning, and in light of the statutory framework, the Court interprete d "use" under 18 U.S.C. § 924(c)(1) to mean "active employment." Id. at 508
. We also think the ordinary and natural meaning of the word "use" mean s something more than illegally transporting a firearm after hunting.

The context of § 2K2.1(b)(2) also supports an interpretation o f "otherwise unlawfully use" requiring something more than a bare violation of an auto safety law. Under the interpretative maxim of ejusdem generis , a general term following more specific terms is held to apply "only t o othe r items akin to those specifically enumerated." Harrison v. PP G Indus., Inc. , 446 U.S. 578, 588 (1980); see also Oxford v. Delo , 59 F.3d 741, 747 (8th Cir. 1995), pet. for cert. filed , No. 95-7829 (Feb. 5, 1996)
. Thus, under this rule , we interpret the phrase "otherwise unlawfully use" in relation to the immediately preceding phrase "unlawfully discharge. " We conclude that an "otherwise unlawful use" under § 2K2.1(b)(2) must be
some action similar to an "unlawful discharge," such as using a gun t o threaten or to beat another person. Cf. United States v. Smeathers , 884 F.2d 363, 364 (8th Cir. 1989) (per curiam) (defe ndant who bought rifle for hunting but used it t o fire shots inside his house after an argument with his wife was not eligible for reduction).
It is still incumbent on a defendant seeking such a reduction

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under § 2K2.1(b)(2) to show that he possessed the firearm for a lawfu l sporting purpose. On remand, Mendoza-Alvarez will thus be required t o demonstrate by a preponderance of the evidence t hat he possessed the rifle for h unting. Due to the government's violation of its plea agreement , however, Mendoza-Alvarez is entitled to resenten cing by a different judge. See United States v. Van Horn , 976 F.2d 1180, 1184 (8th Cir. 1992).

For the aforementioned reasons, we reverse the judgment of th e dist rict court sentencing Mendoza-Alvarez, and remand for resentencin g consistent with this opinion.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.