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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Juan Carlos Bermudez-Zamora, 

Defendant. 

No. CR-17-01601-001-TUC-JGZ (JR) 

ORDER 

 Defendant Juan Carlos Bermudez-Zamora plead guilty to the offense of illegal 

reentry after deportation in violation of 8 U.S.C. §1326. (Doc. 51.) Pending before the 

Court is Defendant’s Objection to the Presentence Investigation Report (PSI) guideline 

calculation. (Doc. 48.) The PSI proposes a ten-level adjustment to Defendant’s base 

offense level pursuant to U.S.S.G. § 2L1.2(b)(3)(A). That section calls for a ten-level 

increase: 

[i]f, after the defendant was ordered deported or ordered removed from the 

United States for the first time, the defendant engaged in criminal conduct that, at any time, resulted in--(A) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was five years or 

more . . . . 

U.S.S.G. § 2L1.2(b)(3)(A). 

 After the Defendant was deported or removed from the United States for the first 

time, he was convicted of a felony for which he received a sentence of greater than five 

years. In 2005, Defendant was convicted of the offense of petty theft with priors and was 

sentenced to seven years’ imprisonment. (Doc. 69 at 7.) According to the PSI, Defendant’s 
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offense involved the theft of two beers from a store. Defendant served five years before 

he was released in 2010. (Id.) 

In November 2014, California enacted Proposition 47, which allowed persons who 

had completed a sentence for a felony conviction and who “would have been guilty of a 

misdemeanor under this act had this act been in effect at the time of the offense” to apply 

for redesignation of the conviction as a misdemeanor. Cal. Penal Code § 1170.18(f)-(g) 

(codifying Proposition 47). Prop. 47 further provided that a felony redesignated as a 

misdemeanor “shall be considered a misdemeanor for all purposes,” with exceptions not 

relevant here. Cal. Penal Code § 1170.18(k). On October 21, 2015, Defendant’s petty theft 

offense was reclassified as a misdemeanor pursuant to Proposition 47. (Doc. 48 at 1, 2.) 

Almost two years later, on September 23, 2017, Defendant was arrested and charged with 

illegal reentry after deportation. (Doc. 69 at 1.) 

Defendant argues that his 2005 petty theft conviction does not qualify as a prior 

felony conviction under U.S.S.G. § 2L1.2(b)(3)(A) because the offense had been statutorily 

deemed a misdemeanor prior to his illegal reentry in September 2017. (Doc. 48 at 2.) 

Defendant reasons that because the reclassification of his conviction as a misdemeanor in 

2015 is retroactive under state law, Defendant’s “prior is and has always been a 

misdemeanor,” including for the purpose of federal sentencing enhancement under 

§ 2L1.2(b)(3). (Doc. 62 at 5.) The Government argues that the 2005 conviction was a 

felony implicated by § 2L1.2(b)(3)(A). 

The cases cited by the parties do not directly address the applicability of 

§ 2L1.2(b)(3)(A) in light of Cal. Prop. 47’s redesignation of felony offenses. The cases 

pertain to different guideline provisions with different criteria. See McNeill v. United 

States, 563 U.S. 816, 818, 823 (2011) (under the Armed Career Criminal Act, “the 

‘maximum term of imprisonment’ for a defendant’s prior state drug offense is the 

maximum sentence applicable to his offense when he was convicted of it” because “[i]t 

cannot be correct that subsequent changes in state law can erase an earlier conviction for 

ACCA purposes”) (emphasis added)); United States v. Norwood, 733 Fed. Appx. 387, 389 

(9th Cir. 2018) (unpublished) (addressing the calculation of criminal history points under 
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USSG § 4A1.1(a) for a drug offense under 21 U.S.C. § 841); United States v. Diaz, 838 

F.3d 968 (9th Cir. 2016) (concluding that the defendant was not entitled to resentencing 

for drug offense when his prior felony drug convictions were reclassified as misdemeanors 

pursuant to Cal. Prop. 47; section 841 explicitly applies when a defendant (1) commits a 

federal drug offense (2) after being convicted of two or more felony drug offenses that have 

“become final.”); United States v. Pagan, No. CR 14-00684, 2016 WL 8729980, at *6 

(C.D. Cal. Apr. 1, 2016) (where federal drug offense sentencing law, 21 U.S.C. § 802(44), 

“defines a ‘felony drug offense’ in the present sense, meaning that the prior offense must 

be one that ‘is’ punishable by imprisonment of more than a year,” felonies reclassified as 

misdemeanors pursuant to Cal. Prop. 47 could not support sentence enhancement for 21 

U.S.C. § 841 violation) (emphasis added); United States v. Yepez, 704 F.3d 1087, 1090 

(9th Cir. 2012) (nunc pro tunc termination of defendants’ probationary sentence as of one 

day before defendants committed federal crime did not erase their prior criminal history 

such that they became eligible for safety valve relief from mandatory minimum sentence 

pursuant to U.S.S.G. § 4A1.2); United States v. Salazar-Mojica, 634 F.3d 1070 (9th Cir. 

2011) (district court correctly applied sentence enhancement under now-repealed U.S.S.G. 

§ 2L1.2(b)(1)(A)(ii), which looked to convictions at time of first deportation, where 

defendant’s state prior was still classified as a felony when defendant was first deported). 

There is no indication whether the drafters of § 2L1.2(b)(3) intended that it apply 

when a felony is redesignated as a misdemeanor. It appears that the phrase “at any time” 

in § 2L1.2(b)(2) and (b)(3) was added to address situations where a defendant committed 

a crime prior to being deported but was convicted of that crime after the deportation. The 

November 2018 Amendment to § 2L1.2(b), which added the “at any time language,” also 

added Note 5, which states that “[t]here may be cases in which the criminal conduct 

underlying a prior conviction occurred both before and after the defendant was ordered 

deported or ordered removed from the United States for the first time.” U.S.S.G. § 2L1.2 

cmt. n.5. 

Based on the plain language of the guideline, the Court concludes that the ten-level 
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enhancement set forth in U.S.S.G. § 2L1.2(b)(3)(A) is applicable. Section 2L1.2(b)(3)(A) 

requires a 10-level increase where “the defendant engaged in criminal conduct that, at any 

time, resulted in--(A) a conviction for a felony offense (other than an illegal reentry 

offense) for which the sentence imposed was five years or more . . . .” The phrase “at any 

time” is unique to § 2L1.2(b)(3). None of the other sentencing provisions in cases cited by 

the parties contain such broad language. The Court “must interpret statutes as a whole, 

giving effect to each word and making every effort not to interpret a provision in a manner 

that renders other provisions of the same statute inconsistent, meaningless or superfluous.” 

Boise Cascade Corp. v. U.S. E.P.A., 942 F.2d 1427, 1432 (9th Cir. 1991). Unlike the 

sentencing provisions at issue in the cases cited by the parties, which expressly contemplate 

time periods within which prior sentences must have occurred to qualify as predicate 

offenses, the “at any time” language in U.S.S.G. § 2L1.2(b)(3) broadly encompasses all 

prior convictions that, at any time, resulted in a felony conviction with a sentence of five 

years or more. See, e.g., U.S.S.G. § 4A1.2(d)-(e). Applying the plain language, 

Defendant’s 2005 conviction falls within the requirements for the ten-level enhancement. 

In 2005 Defendant engaged in criminal conduct which resulted in a felony conviction with 

a sentence of more than five years. Thus, the fact that the state of California subsequently 

deemed the conviction a misdemeanor does not erase that historical fact, particularly in the 

application of the federal sentencing guidelines. 

The Court notes that inequities as to this result may be addressed by other provisions 

of the sentencing guidelines as well as arguments for a variance. 

THEREFORE, IT IS ORDERED that Defendant’s Objection to the Presentence 

Report is OVERRULED. (Doc. 48.) 

 Dated this 13th day of December, 2018.