*Of the Ninth Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

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
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Per Curiam. Defendant Samuel Sanchez Mota pleaded guilty

to being an alien found 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 in 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

from the country to return to the United States without special

permission, and it authorizes a prison term of up to, but no more

than, two years. Section 1326(b) authorizes a prison term of up

to, but no more than, 20 years for "any alien described" in

subsection (a), if the initial "removal was subsequent to a

conviction for commission 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—served as 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 Sanchez-Mota was

deported from the United States in 1994. He returned and was again

deported/removed from the United States in August 1999. Sometime
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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 appropriated goods, and sentenced to

two years. On an unknown date in 2001, Sanchez-Mota was released

from custody upon the completion of his sentence. In July 2001, he

was arrested and charged with being an illegal alien "found in" the

United States after deportation, in violation of 8 U.S.C.

§ 1326(a). He pleaded guilty. His non-binding plea agreement

specified a U.S.S.G. calculation with the understanding that

Sanchez-Mota was not an aggravated felon. That calculation would

have provided for an adjusted offense 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 previously was deported, or unlawfully remained in the

United States, after . . . a conviction for an aggravated felony."

The district court, accepting the recommendation of the probation

officer, concluded that the guideline for aggravated felons

applied. The court sentenced Sanchez-Mota in accordance with an

adjusted offense level of 13, which resulted in a 30-month

sentence.
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DISCUSSION

We review the district court's interpretation and

application of the sentencing guidelines de novo and its factual

findings for clear error. United States v. Skrodzki, 9 F.3d 198,

203 (1st Cir.1993).

Although the language 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 after his conviction, i.e., his

initial deportation could serve as the basis for unlawfully

remaining in the country subsequent 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

district court correctly applied the U.S.S.G. § 2L1.2(b)(1)(C)

enhancement, but should have sentenced Sanchez-Mota to no more than

two years, the statutory maximum under § 1326(a). Sanchez-Mota

argues that U.S.S.G. § 2L1.2(b)(1)(C) does not apply to these

factual circumstances. Alternatively, he argues that the guideline
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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 between 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 "Unlawfully Entering or

Remaining in the United States." It is the "Remaining in the

United States" 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:

A defendant 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
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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 aggravated felony. Were the

government's interpretation of U.S.S.G. § 2L1.2(b)(1) adopted, it

wouldn't matter whether the removal occurred precedent to or

subsequent to the conviction. So long as the defendant had been

previously deported, he would face a sentencing enhancement if he

committed an aggravated felony. Thus, the government implies that

applying the present guideline would have changed the result of

United States v. Mendoza-Alvarez, 79 F.3d 96 (8th Cir. 1996).

In Mendoza-Alvarez, the defendant's initial deportation

occurred in 1986 or earlier, he was convicted of a crime in 1987,

and he 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

enhanced his base level for the offense under U.S.S.G.

§ 2L1.2(b)(1). The government argued that this enhancement was

proper because the defendant (a) had been convicted of an

aggravated felony, 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
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under U.S.S.G. 2L1.2(b)(1)(C) because the defendant's 1987

deportation order meant 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

A larger problem with 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

convicted only 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, 110 Stat. 3009.

IIRIRA provided that the Sentencing Commission was to "make

appropriate changes in the base offense level for offenses under

. . . 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 correlative for unlawfully
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"remaining 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 issue

here. The guidelines contain no discussion whatsoever about

applying the unlawfully "remaining" language to defendants

convicted under § 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 history category) would result in a sentence of

24 months, i.e., the same as the statutory maximum under § 1326(a).

See U.S.S.G. § 2L1.2(a); Ch. 5, Pt. A (Sentencing Table). If the

defendant was previously deported, or unlawfully remained in the

United States, after a conviction for an aggravated felony, the

base level is increased by 8 levels. At offense level 16, the

maximum sentence 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 makes little sense for the government to suggest that

U.S.S.G. § 2L1.2(b)(1)(C) would require an automatic statutory

maximum sentence of two years for all defendants similarly situated
1Under a straight application of the guidelines, only

defendants with a criminal history category of (I) would be

sentenced to less than two years. Even then the range would be 21

to 27 months. U.S.S.G. Ch. 5, Pt. A.

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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.