### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 16

- 1554 U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

R UBEN A. P AZ

- G IRON , Defendant

- Appell ant

.

____________________ Appeal from t he United States District Court for the Central District of Illinois No. 15

- CR

- 20059

- 01

— Colin S. Bruce , Judge

.

____________________ A RGUED A UGUST 9, 2016

— D ECIDED A UGUST 17, 2016

____________________
Before B AUER , P OSNER , and S YKES , Circuit Judges

. S YKES , Circuit Judge

. Ruben Paz

- Giron, a 46

- year

- old cit izen of Mexico, pleaded guilty to being unlawful ly 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 misappl ied 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 does2 No. 16

- 1554

not qualify for the adjustment, we vacat e the sentence and remand for re sen tencing.
I. Background
Paz

- Giron entered the United States without authoriz ation 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

- Giro n returned to the United States and had further run

- ins with the law. In January 2013 he was again convicte d 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 anoth er 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 probatio n office calculated a G uid elines range of 24 to 30 months based on a total off ense level of 13 and a criminal

- history category of IV . T he key dete rminant was the application of an 8

- level upward adjustment under § 2L1.2(b)(1)(C) , which applies to alien s wh o “unla wfully 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 Mexic o and returned to the United States

. The prese n-No. 16

- 1554 3

tence report also state d , mistakenly, that the statuto ry ma ximum penalty was 20 years. At sentencing t he govern ment advised the court that Paz

Giron’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 subs equent 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 remov ed before his aggravated

- felony conviction for identi t y 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) ? Th is issue is new on appeal, so our review is for plain error. Henderson v. United States , 133 S. Ct. 1121, 1124 (2013); F ED

. R. C RIM

. P. 52(b). We m ay 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 convi ction for an aggravated felony.” § 2L1.2(b) (1)(C) . Paz

- Giron argues that he does not meet this condition because he was4 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 adjus tment applies to him only if he can be said to have “unlawfu lly remained in the United States” after such a conviction. § 2L1.2(b) (1)(C) . The term “unlawfully re mained” is helpfu lly defined in an app lication 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 Un ited States following

a removal order issued after a conviction , regardless of whether the removal order was in response to the conviction.” § 2L1.2 c mt. n.1(A)(iii) (emphasis added)

. That is, the a djustment applies only if the defendant unlawfully remain ed 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 b efore his aggravated

- felony conviction, so he did not “unla wfully remain” in th is 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 convi ction for an aggravated felony”); Un ited States v. Nevares

Bustamante , 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

T he government offers two alternative interpretations of the applica tion note. The first alternative read s t he note as simply giving an example of one circumstance in which th e adjustment should apply

. Th is reading ignores the actual language of the note, which is categorical , not exemplary

. The note explains that the adjustment applies “if the defen dant 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 authorit ative 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 compelli ng. Seizing on the note ’s refer ence 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 convic tion, even if the c onviction was not for an aggravated felo ny. On this understanding , the increase was appropriate here because Paz

- Giron remained in this cou ntry following a removal order issued after he sustained

s everal convictions for drunk driving ; it doesn’t matter tha t the removal order was issued long before the aggravated

felony conviction

. Th is strained reading creates a glaring inconsistency b etween t he guideline itself and its interpreta tive note

. The text of the guideline tells us that the relevant conviction for purposes of the 8

- level increase is “a conviction for an6 No. 16

- 1554

aggravated felony.” § 2L1.2(b)(1)(C)

. Under the gover nment’s proposed interpretation, t h e 8

- level adjustment would be triggered if the defendant remain ed in this country following a removal order issued after any convic tion

— 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 t he government’s proposed altern ative interpretation s of the n ote are inconsistent with the purpose of § 2L1.2(b)(1)(C). Years ago we emphasized that this guide line is keyed to “the seriousness of the crime committed, ratcheting up the sentence because it is a more serious offense to ret urn after deportation when the defen dant 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 co nsistent with the statutory scheme ; s e ction 1326(b)(2) raises the maximum sentence from 2 to 20 years for aliens who were removed “subsequent to” a conviction for an aggrava ted felony. See Sanchez

-Mota , 319 F.3d at 4 (recognizing that “[i]t makes little sense for the govern ment to suggest that U.S.S.G. § 2L1.2(b)(1)(C) would require an automatic statut ory maximum sentence” for defendants removed before a conviction for an aggravated felony). As we’ve noted, t he judge correctly recognized that the higher statutory max imum does not apply to Paz

- G iron because his re moval order and aggravated

- felony conviction did not occur in the proper sequence . Fo r precisely the same reason , the judge shouldn’t have applied the 8

- level Guidelines adjust ment either.No. 16

- 1554 7

Without th e 8

- level increase , the G uideline s range is 6 to 12 months rather than 24 months

. S ee U.S.S.G. c h. 5 , pt. A , and § 3E1.1. A miscalculation of the advisory range is ord inarily enough to establish prejud ice for purposes of plain

error review. That standard requires the defendant to show “a r easonable probability that, but for the error, the outcome of the proceeding would have been different. ” Molina

Martinez v. United States , 136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted). Molina

- Martinez held that “ [w] hen a defendant is sen tenced under an incorrect Guidelines range[,] ... the error itself can, and most often will , be suff icient to show a reasonable probability of a different outcome absent the error.” Id. at 1345 (emphasis added). Moreover,

w e’ve emphasized that “[w]hen a district court incorrectly calculates the [G]uideline[s] range, we normally presume the improperly calculated [G]uidelin e [s] range influenced the judge’s choice of sentence, unless he says otherwise.” United States v. Adams , 746 F.3d 734, 743 (7th Cir. 201 4). The normal presumption applies here. Accordingly, we V ACATE the sentence and R EMAND for resentencing. In light of the exigencies here, the mandate sh all issue forthwith and resentencing should be expedited

.