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No. 95-3162

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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. *

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 Submitted: February 13, 1996

 Filed: March 14, 1996

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Before McMILLIAN, LAY and HANSEN, Circuit Judges.

___________

LAY, Circuit Judge.

Jesus Mendoza-Alvarez entered a guilty plea to illegal reentry after

deportation in violation 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). MendozaAlvarez received two concurrent twenty-four-month terms of imprisonment.

On appeal, Mendoza-Alvarez asserts the government violated its plea

agreement and that the district court erred in applying the Sentencing

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 of

guilty for illegal reentry after deportation. He does not dispute that he

was deported from the United States prior to 1987. The base level for this

offense was eight; however, the district court increased the offense level

by four levels under
 At the sentencing hearing, the defendant objected to the

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enhancement on the ground that the prior conviction the government

relied upon was deemed to be a misdemeanor under state law. The

government urged and the district court agreed that the law of the

state should not control in defining a felony, and that the

Sentencing Guidelines define any offense to be a felony if the

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 criminal

history). The defendant relied on United States v. Brown, 33 F.3d

1014, 1018 (8th Cir. 1994), which looked to California law to

determine whether a crime was a felony for purposes of applying a

twenty-year mandatory minimum for previously convicted drug

felonies under 21 U.S.C. § 841.

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§ 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 involving

violation of the immigration laws." The predicate felony on which the

government relied in seeking this enhancement was the defendant's 1987

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 find no evidence 1

that the defendant was ever deported following his 1987 conviction. 

In finding that the defendant had been deported following his

conviction, the district court relied on a generalized statement of the

California court that it released the defendant to the INS for "deportation

processing." The government conceded it offered no proof that the

defendant was ever deported. In fact, the record showed that (1) the

California court placed Mendoza-Alvarez on probation to the court pending

"verification that the defendant has been deported," and (2) the INS, on

April 19, 1988, "released" the defendant because of its heavy caseload,

stating that the defendant wanted to travel to Iowa to see his attorney

since he was "claiming 13 years residence with only a brief period outside

of the U.S." 

The government points to evidence that the defendant voluntarily

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 an immigration visa. The government told the district

court it did not offer proof of deportation because it did not consider it

to be at issue. The government conceded that it did not know of any

deportation order. On this basis we find the evidence totally deficient

as to proof of deportation. The fact that the defendant may have

voluntarily returned to Mexico after his California conviction is not proof

of deportation. We therefore conclude that the district court erred in

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

him an eight-level reduction under U.S.S.G. § 2K2.1(b)(2) for his

conviction for possession of a firearm by an illegal alien. Section

2K2.1(b)(2) of the Guidelines provides for a reduction "[i]f the defendant

. . . possessed all ammunition and firearms solely for lawful sporting

purposes or collection, and did not unlawfully discharge or otherwise

unlawfully use such firearms or ammunition." This reduction was denied

because Mendoza-Alvarez was apprehended driving his car with a loaded rifle

in violation of Iowa Code Ann. § 483A.36 (West Supp. 1995).

Mendoza-Alvarez claims he possessed the rifle solely for sporting

purposes, had been hunting the morning police stopped his automobile, and

was in a hurry to get to work. He also presented his Iowa hunting license

and affidavits from Iowa residents confirming that he used the rifle for

hunting rabbits. In an oral plea agreement, the government promised

Mendoza-Alvarez it would remain silent on his eligibility for the reduction

under the Guidelines at the sentencing hearing except to ensure factual

accuracies about Mendoza-Alvarez's possession of the rifle. Nonetheless,

when the district court asked the government for its position on this

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 of state

law will automatically defeat a § 2K2.1(b)(2) reduction. The court

noted that "Kissinger had not obtained a permit to carry the gun in

South Dakota," but this was only one factor in upholding the

district court's factual finding that the defendant possessed the

firearm for gun for "personal protection" rather than a lawful

sporting or collection purpose. Id. at 1246.

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"under the state of the law, the Court has no discretion. [Section

2K2.1(b)(2)] does not apply in this case. . . . [I]f there's anything

about it that's illegal, if they're shooting out street lights with the

gun, that will destroy the lawful possession for sporting use . . . ."

Sent. Tran. at 15. The district court then denied Mendoza-Alvarez the

reduction under § 2K2.1(b)(2).

By failing to remain silent, the government clearly violated its oral

plea agreement with Mendoza-Alvarez. See Margalli-Olvera v. INS, 43 F.3d

345, 354 (8th Cir. 1994) (promise to remain silent by U.S. attorney binding

on and breached by INS); United States v. McCray, 849 F.2d 304, 305 (8th

Cir. 1988) (per curiam). At oral argument, government's counsel

apologized, but stated he felt compelled to do so because the district

court asked the government for its views on whether the defendant was

entitled to a reduction. Nonetheless, the government contends its

violation of the plea agreement 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 evidence from which a reasonable trier

of fact could conclude that he "possessed all . . . firearms solely for

lawful sporting purposes," i.e., hunting pursuant to a state hunting

license. There is also no evidence that Mendoza-Alvarez "unlawfully

discharge[d]" his rifle. Thus, the sole issue is whether Mendoza-Alvarez,

in transporting a loaded firearm in violation of Iowa law, did "otherwise

unlawfully use" his firearm so as to preclude application of the

§ 2K2.1(b)(2) reduction.2
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We conclude 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]he

word 'use' [as applied under 18 U.S.C. § 924(c)] must be given its

'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 various definitions of 'use'

imply action and implementation." Bailey v. United States, 116 S. Ct. 501,

506 (1995) (citations and alterations omitted). Based on this ordinary

meaning, and in light of the statutory framework, the Court interpreted

"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" means

something more than illegally transporting a firearm after hunting.

The context of § 2K2.1(b)(2) also supports an interpretation of

"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 to

other items akin to those specifically enumerated." Harrison v. PPG

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 to

threaten or to beat another person. Cf. United States v. Smeathers, 884

F.2d 363, 364 (8th Cir. 1989) (per curiam) (defendant who bought rifle for

hunting but used it to 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 lawful

sporting purpose. On remand, Mendoza-Alvarez will thus be required to

demonstrate by a preponderance of the evidence that he possessed the rifle

for hunting. Due to the government's violation of its plea agreement,

however, Mendoza-Alvarez is entitled to resentencing 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 the

district court sentencing Mendoza-Alvarez, and remand for resentencing

consistent with this opinion.

A true copy.

Attest:

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