In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-1554

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RUBEN A. PAZ-GIRON,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Central District of Illinois

No. 15-CR-20059-01 — Colin S. Bruce, Judge.

____________________

ARGUED AUGUST 9, 2016 — DECIDED AUGUST 17, 2016

____________________

Before BAUER, POSNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Ruben Paz-Giron, a 46-year-old citizen of Mexico, pleaded guilty to being unlawfully present in 

the United States after removal, 8 U.S.C. § 1326(a), and was 

sentenced to 24 months in prison. He claims that the district 

court misapplied an 8-level upward adjustment in the 

Sentencing Guidelines for aliens who unlawfully remain in 

the United States after being convicted of an aggravated 

felony. See U.S.S.G. § 2L1.2(b)(1)(C). Because Paz-Giron does 
2 No. 16-1554

not qualify for the adjustment, we vacate the sentence and 

remand for resentencing.

I. Background

Paz-Giron entered the United States without authorization around 1985 when he was 15 years old. His early years 

here were uneventful, but between 1998 and 2001, he was 

convicted four times in California for driving under the 

influence of alcohol. He was removed to Mexico in 2002.

Sometime later Paz-Giron returned to the United States 

and had further run-ins with the law. In January 2013 he was 

again convicted of driving under the influence. Two months 

later he pleaded guilty to identity theft for using someone 

else’s personal information to obtain medical services from a 

local hospital. This offense was an aggravated felony under 

8 U.S.C. § 1101(a)(43)(M)(i) because it involved more than

$10,000 in loss to the victim. In 2015 he was convicted of yet 

another DUI.

In late 2015 a federal grand jury indicted Paz-Giron for 

being unlawfully present in the United States after removal.

He pleaded guilty. The probation office calculated a Guidelines range of 24 to 30 months based on a total offense level 

of 13 and a criminal-history category of IV. The key determinant was the application of an 8-level upward adjustment 

under § 2L1.2(b)(1)(C), which applies to aliens who “unlawfully remain[] in the United States, after ... a conviction for 

an aggravated felony.” The probation office applied this 

adjustment based on Paz-Giron’s 2013 conviction for identity 

theft—a conviction that occurred years after he was removed 

to Mexico and returned to the United States. The presen-
No. 16-1554 3

tence report also stated, mistakenly, that the statutory maximum penalty was 20 years.

At sentencing the government advised the court that PazGiron’s statutory-maximum sentence was 2 years rather than 

20 years, as stated in the presentence report. The higher 

maximum applies only to aliens “whose removal was subsequent to a conviction for commission of an aggravated 

felony,” 8 U.S.C. § 1326(b)(2), and as the government 

acknowledged, Paz-Giron had been removed before his 

aggravated-felony conviction for identity theft. The district 

judge noted the correction, applied the 8-level adjustment

under § 2L1.2(b)(1)(C), and imposed a 24-month sentence, 

the statutory maximum.

II. Discussion

Paz-Giron’s appeal raises a single issue: Was it error to 

apply the 8-level upward adjustment under § 2L1.2(b)(1)(C)?

This issue is new on appeal, so our review is for plain error. 

Henderson v. United States, 133 S. Ct. 1121, 1124 (2013); FED. R.

CRIM. P. 52(b). We may correct a forfeited error if (1) the 

error is “plain”; (2) affects the defendant’s “substantial 

rights”; and (3) “seriously affects the fairness, integrity, or 

public reputation of [the] judicial proceedings.” Henderson, 

133 S. Ct. at 1126–27 (quotation marks omitted).

The offense guideline applicable to Paz-Giron’s 

§ 1326(b)(2) conviction instructs the court to apply an 8-level 

increase “[i]f the defendant previously was deported, or 

unlawfully remained in the United States, after ... a conviction for an aggravated felony.” § 2L1.2(b)(1)(C). Paz-Giron 

argues that he does not meet this condition because he was 
4 No. 16-1554

removed in 2002, long before he committed the aggravated 

felony of identity theft.

He is correct. Paz-Giron was not “deported ... after ... a 

conviction for an aggravated felony,” so the 8-level adjustment applies to him only if he can be said to have “unlawfully remained in the United States” after such a conviction. 

§ 2L1.2(b)(1)(C). The term “unlawfully remained” is helpfully defined in an application note that is quite specific in 

describing the sequence in which the removal order and the 

relevant conviction must take place: “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.” 

§ 2L1.2 cmt. n.1(A)(iii) (emphasis added). That is, the adjustment applies only if the defendant unlawfully remained

in this country following a removal order issued after the 

relevant conviction—here a conviction for an aggravated 

felony.

Paz-Giron was removed from the United States long before his aggravated-felony conviction, so he did not “unlawfully remain” in this country as that term is defined in the 

application note. See United States v. Martinez-Garcia, 268 F.3d 

460, 466 (7th Cir. 2001) (recognizing that the guideline 

applies “where the deportation was subsequent to a conviction for an aggravated felony”); United States v. NevaresBustamante, 669 F.3d 209, 213 (5th Cir. 2012) (reaching same 

conclusion); United States v. Sanchez-Mota, 319 F.3d 1, 3–4 (1st

Cir. 2002) (spurning as “unsupported and unpersuasive” the 

argument that the guideline applies to defendants removed 

before an aggravated-felony conviction).
No. 16-1554 5

The government offers two alternative interpretations of 

the application note. The first alternative reads the note as 

simply giving an example of one circumstance in which the 

adjustment should apply. This reading ignores the actual 

language of the note, which is categorical, not exemplary. 

The note explains that the adjustment applies “if the defendant remained in the United States following a removal order 

issued after a conviction” for one of the crimes listed in the 

guideline—here, an aggravated felony. § 2L1.2 cmt. 

n.1(A)(iii); see Stinson v. United States, 508 U.S. 36, 38 (1993) 

(“[C]ommentary in the Guidelines Manual that interprets or 

explains a guideline is authoritative unless it violates the 

Constitution or a federal statute, or is inconsistent with, or a 

plainly erroneous reading of, that guideline.”). This text is 

not phrased as a mere example.

The government’s second proposed interpretation is even 

less compelling. Seizing on the note’s reference to 

“a conviction” rather than “the conviction,” the government 

suggests that the 8-level adjustment applies if the defendant 

remained in this country following a removal order issued 

after any conviction, even if the conviction was not for an 

aggravated felony. On this understanding, the increase was 

appropriate here because Paz-Giron remained in this country following a removal order issued after he sustained 

several convictions for drunk driving; it doesn’t matter that 

the removal order was issued long before the aggravatedfelony conviction. 

This strained reading creates a glaring inconsistency between the guideline itself and its interpretative note. The text 

of the guideline tells us that the relevant conviction for 

purposes of the 8-level increase is “a conviction for an 
6 No. 16-1554

aggravated felony.” § 2L1.2(b)(1)(C). Under the government’s proposed interpretation, the 8-level adjustment

would be triggered if the defendant remained in this country 

following a removal order issued after any conviction—even 

one for a trivial offense like jaywalking—as long as the 

defendant was convicted of an aggravated felony sometime 

later. That tortured interpretation cannot be correct.

We note as well that the government’s proposed alternative interpretations of the note are inconsistent with the 

purpose of § 2L1.2(b)(1)(C). Years ago we emphasized that 

this guideline is keyed to “the seriousness of the crime 

committed, ratcheting up the sentence because it is a more 

serious offense to return after deportation when the defendant has previously committed a serious crime.” United States 

v. Gonzalez, 112 F.3d 1325, 1330 (7th Cir. 1997) (construing an 

earlier version of § 2L1.2(b)). That understanding is consistent with the statutory scheme; section 1326(b)(2) raises 

the maximum sentence from 2 to 20 years for aliens who 

were removed “subsequent to” a conviction for an aggravated felony. See Sanchez-Mota, 319 F.3d at 4 (recognizing that 

“[i]t 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” for defendants removed before a 

conviction for an aggravated felony). As we’ve noted, the 

judge correctly recognized that the higher statutory maximum does not apply to Paz-Giron because his removal order 

and aggravated-felony conviction did not occur in the 

proper sequence. For precisely the same reason, the judge

shouldn’t have applied the 8-level Guidelines adjustment 

either.
No. 16-1554 7

Without the 8-level increase, the Guidelines range is 6 to 

12 months rather than 24 months. See U.S.S.G. ch. 5, pt. A,

and § 3E1.1. A miscalculation of the advisory range is ordinarily enough to establish prejudice for purposes of plainerror review. That standard requires the defendant to show 

“a reasonable probability that, but for the error, the outcome 

of the proceeding would have been different.” MolinaMartinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal 

quotation marks omitted). Molina-Martinez held that “[w]hen 

a defendant is sentenced under an incorrect Guidelines 

range[,] ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome 

absent the error.” Id. at 1345 (emphasis added). Moreover, 

we’ve emphasized that “[w]hen a district court incorrectly 

calculates the [G]uideline[s] range, we normally presume the 

improperly calculated [G]uideline[s] range influenced the 

judge’s choice of sentence, unless he says otherwise.” United 

States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014). The normal 

presumption applies here.

Accordingly, we VACATE the sentence and REMAND for 

resentencing. In light of the exigencies here, the mandate 

shall issue forthwith and resentencing should be expedited.