* Of the Ninth Circuit, sitting by designation.



# United Stat es Court of Appeals

For the First C ircuit

No. 02-1741 UNITED STATES OF AMERICA, Appellee,

v. SAMUEL SANCHEZ-MOTA, Defendant, Appellant.

___________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge ]

___________________________

Before Selya, Circuit Judge , Farris, * Senior Circuit Judge , and Howard, Circuit Judge .

___________________________ Héctor E. Guzmán-Silva , Assistant Federal Public Defender, with whom Joseph C. Laws, Jr. , Federal Public Defender, and Juan F. Matos-DeJuan , Assistant Federal Public Defender, were on brief, for Appellant. Thomas F. Klumper , Assistant United States Attorney, with whom H. S. Garcia , United States Attorney, and Sonia I. Torres , Assistant United States Attorney, were on brief, for the Appellee.

December 24, 2002-2- Per Curiam . Defendant Samuel Sanchez Mota pleaded guilty to being an alien fo und in the United States after removal, in violation of 8 U.S.C. § 1326(a). The district court applied U.S.S.G. § 2L1.2(b)(1)(C) to enhance his base offense by 8 levels for remaining i n the United States after an aggravated felony conviction. We reverse and remand for resentencing. BACKGROUND Title 8, § 1326(a ) forbids an alien who was once removed fromthe country to return to the United States without special permission, and it authorizes a prison term of up to, but no more than, two y ears. Section 1326(b) authorizes a prison term of up to, but no more th an, 20 y ears for "any alien described" in subsection (a), if the initial "removal was subsequent to a conviction for co mmissi on of an aggravated felony." 8 U.S.C. § 1326(b) (emphasis added). As the government acknowledges, there is no question that the defendant is subject to § 1326(a), but is not subject to § 1326(b). Nevertheless, his conviction for an aggravated felony—though his initial removal was precedent to the conviction—servedas the basis for the district court's application of a sentencing enhancement and a term of imprisonment in excess of the § 1326(a) limit of two years.

The facts are not in dispute. Samuel Sanche z-Mota was deportedfrom the United States in 1994. He returned and was again deported/removed from the United States in August 1999. Sometime-3-

after this removal, Sanchez-Mota reentered the United States. In April 2000, he was convicted in Puerto Rico of an "aggravated felony," receipt of illegally appropriatedgoods, and sentenced to two years. On an unknown date in 2001, Sanchez-Mota was released fromcustody upon the completion of his sentence. In July 2001, he

was arrested and charged with being an illegal alien "found in" the UnitedStates after deportation, in violation of 8 U.S.C. § 1326(a). He pleaded guilty. His non-binding plea agreement specifieda U.S.S.G. calculation with the understand ing th at Sanchez-Mota was not an aggravated felon. That calculation would have provided for an adjuste d off ense level of 6, resulting in a guideline sentencing range of 9 to 15 months.

The district court disagreed with the calculation presented by the parties. U.S.S.G. § 2L1.2(b)(1)(C) provides for

an 8-level enhancement in the base offense level "[i]f the defendant prev iously was deported, or unlawfully remained in the UnitedStates, after . . . a conviction for an aggravated felony." The district court, accepting the recommendation of the probation of ficer, concluded that the guideline for aggravated felon s applied. The court sentenced Sanc hez-Mo ta in accordance with an adjustedoffense level of 13, which resulted in a 30-mon th sentence.-4- DISCUSSION We review the district court's interpretation and

a pplication of the sentencing guidelines de novo and its f actua l findings for clear error. United States v. Skrodzki , 9 F.3d 198, 203 (1st Cir.1993).

Although the la nguage of the relevant statute and guideline is convoluted, the question presented is simple: does a U.S.S.G. § 2L1.2(b)(1)(C) enhancement apply to Sanchez-Mota, whose removal was precedent to his conviction for an aggravated felony? The government argues that it does because Sanchez-Mota unlawfully "remained" in the United States aft er his conviction, i.e., his initial deportation could serve as the basis for unlawfully remaining in the country sub sequent to his conviction because 8 U.S.C. § 1326(a) constitutes a continuing offense. The government reconciles the contradiction between U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1326(b)—a penalty provision that states that an alien's removal must be subsequent to an aggravated felony—by asserting that § 1326(b) doesn't apply. According to the government, the distri ct co urt correctly applied the U.S.S.G. § 2L1.2(b)(1)(C) enhancement, but shouldhave sentenced Sanchez-Mota to no more than two years, the statutory maximum und er § 1326(a). Sanchez-Mota argue s that U.S.S.G. § 2L1.2(b)(1)(C) does not apply to thes e factual circumstances. Alternatively, he argues that the guideline-5-

language is ambiguous and the rule of lenity should be applied in his favor. Sanchez-Mota's position is more persuasive based on: (1) the plain language of U.S.S.G. § 2L1.2(b)(1)(C); and (2) the relationship be tween U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1326(a). 1. Plain Language of U.S.S.G. § 2L1.2(b)(1)(C)

U.S.S.G. § 2L1.2 is entitled "Unlawf ully Entering or Remaining in the United St ates." It is the "Remaining in the UnitedStates" aspect that the government attempts to apply to Sanchez-Mota. Because § 1326(a) constitutes a continuing offense, the government argues that the 8-level enhancement applies—even if his removal was precedent to the conviction. According to the government, Sanchez-Mota necessarily "remained" in the country subsequent to his conviction for an aggravated felony.

The application notes for U.S.S.G. § 2L1.2(b)(1)(C) provide: Adefendant shall be considered to have

unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction , regardless of whether the removal order was in response to the conviction. U.S.S.G. § 2L1.2, cmt. n.1(A)(iii) (emphasis added). This language suggests that the guideline enhancement will apply, at most, to an alien who (a) commits an aggravated felony, (b) is then subject to-6-

an order of deportation or removal, and (c) doesn't depart but instead remains in the United States unlawfully.

In contrast, Sanchez-Mota (a) was removed, (b) returned illegally, and (c) was convicted of an aggravatedfelony. Were the government's interpretation of U.S.S.G. § 2L1.2(b)(1) adopted, it wouldn't m atte r whether the removal occurred precedent to or subs equen t to the conviction. So long as the defendant had been previously deported , he would face a sentencing enhancement if he committedan aggravated felony. Thus, the government implies that applying the present guideline would have changed the re sul t of United States v. Mendoza-Alvarez , 79 F.3d 96 (8 th Cir. 1996).

In Mendoza-Alvarez , the defendant's initial deportation occurred in 1986 or earlier, he was convicted of a crime in 1987, andhe voluntarily departed sometime after that only to return illegally. This final time around, he pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326(a), and the district court enhanc ed h is base level for the offense under U.S.S.G. § 2L1.2(b)(1). The g over nment argued that this enhancement was pr ope r because the defendant (a) had been convicted of an aggravatedfelony, and (b) had voluntarily departed the country and then illegally returned. The Eighth Circuit reversed because the government had failed to offer any evidence that defendant had ever been deported after his conviction. Id. at 97-98. According to the government's interpretation, this consideration would not matter-7-

under U.S.S.G. 2L1.2(b)(1)(C) because the defendant's 1987 deportation order mean t that he was unlawfully "remaining in the United States" subsequent to any conviction. This interpretation is unsupported and unpersuasive. 2. Relationship Between U.S.S.G. § 2L1.2(b)(1) and 8 U.S.C. § 1326 Alarger problemwith the government's interpretation of U.S.S.G. § 2L1.2(b)(1) is that it allows the application of a greater penalty according to the rationale of § 1326(b) for someone convictedonly of violating § 1326(a), even when § 1326(b) expressly doesn't apply. We reject the argument.

The Sentencing Commission added the unlawfully "remaining" provision and its explanatory notes to U.S.S.G. § 2L1.2 in order to implement the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 11 0 Stat. 3009. IIRIRAprovided that the Sentencing Commission was to "make app ropriate changes in the base offense level for offenses u nde r

. . . 8 U.S.C. 1252(e) and 1326(b)" to reflect corresponding changes made in statutory penalties for those offenses made by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103- 322, 108 Stat. 1796. IIRIRA § 334 (emphasis added); see U.S.S.G., App. C, amend. 562. The old § 1252(e), the substance of which is

now contained in 8 U.S .C. § 1253(a), addressed penalties for "failure to depart," the natural correlat ive for unlawfully-8-

"rema ining in the United States." See VCCLEA § 130001; 8 U.S.C. § 1253(a) ("Penalty for failure to depart"). That section is not at issue here. Section 1326(b) addresses aliens whose removal was subsequent to their convictions for aggravated felonies. The government recognizes that section 1326(b) is also not at is sue here. The gui delines contain no discussion whatsoever about applying the unlawfully "remaining" language to defendants convictedunder § 1326(a) but not § 1326(b) . The government's suggestion to the contrary is unsupported.

Furthermore, the base offense level for someone convicted of a violation of § 1326(a) alone is 8, which at most (for someone in the top criminal historycategory) would result in a sentence of 24 months, i.e., the same as the statutory maximumunder § 1326(a). See U.S.S.G. § 2L1.2(a); Ch. 5, Pt. A (Sentencing Table). If the defendant was previously deported, or unlawfully rem aine d in the UnitedStates, af ter a conviction for an aggravated felony, the base level is increased by 8 levels. At offense level 16, the maximumsentence is 57 months, a figure that far exceeds the statutory maximum of subsection (a), but one that falls well within the statutory maximum of 20 years contained in subsection (b). See id. It m akes litt le sense for the government to suggest that U.S.S.G. § 2L 1.2(b)(1)(C) would require an automatic statutory maximumsentence of two years for all defendants similarly situated1 Un der a straight application of the guidelines, only

defendants with a criminal history category of (I) would be sentencedto less than two years. Even then the range would be 21 to 27 months. U.S.S.G. Ch. 5, Pt. A. -9- to Sanchez-Mota. 1 Far more persuasive is the defendant's contention that the U.S.S.G. § 2L1.2(b)(1)(C) enhancement does not apply to him.

Reversed and remanded for resentencing .