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No. 95-3286

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United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the Northern

Miguel Lazaro-Guadarrama, * District of Iowa.

also known as Daniel Flores- *

Arismendi, also known as *

Miguel Angel Lazaro, also *

known as Lazaro M. Guadarrama, *

*

Appellant. *

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 Submitted: December 13, 1995

 Filed: December 14, 1995

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Before MAGILL, BRIGHT and MURPHY, Circuit Judges.

___________

BRIGHT, Circuit Judge.

Miguel Lazaro-Guadarrama, a citizen of Mexico, appeals his eightmonth sentence imposed by the district court after he pleaded guilty to

illegally re-entering the United States as a deported alien, in violation

of 18 U.S.C. § 1326(a) & (b)(1). For reversal, Lazaro-Guadarrama

challenges the district court's imposition of a four-level sentencing

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1) because Lazaro-Guadarrama

previously had been deported after a conviction for possession of a

counterfeit Alien Registration Receipt ("green card"). Because LazaroGuadarrama's prior felony related to an immigration law violation which

does not call for an enhanced sentence, 18 U.S.C. § 1546, we reverse and

vacate the sentence imposed.
I. BACKGROUND

In January 1994, Lazaro-Guadarrama was convicted in the United States

District Court for the Northern District of Iowa for fraud and misuse of

visas, permits and other documents, in violation of 18 U.S.C. § 1546, as

a result of Lazaro-Guadarrama's entering into the United States without

inspection. Lazaro-Guadarrama had attempted to obtain an Iowa

identification card at the Waterloo office of the Iowa Department of

Transportation using a false Alien Registration Receipt card (commonly

known as a "green card"). His application for an identification card was

denied and the false green card was confiscated. Lazaro-Guadarrama

admitted the charges at his February 1994 deportation hearing, waived

appeal, and was deported to Mexico three days later. After a few months,

Lazaro-Guadarrama returned to the United States to be with his fiancee and

infant and began working. Lazaro-Guadarrama was arrested on May 2, 1995,

and charged with the instant offense.

The presentence report (PSR) indicated a base offense level of 8

under section 2L1.2, a two-level reduction for accepting responsibility,

and a four-level enhancement under section 2L1.2(b)(1). LazaroGuadarrama's total offense level of 10 and his criminal history category

of II (based on his prior felony) resulted in a Guidelines sentencing range

of eight to fourteen months. Applying the four-level increase under

section 2L1.2(b)(1) over Lazaro-Guadarrama's objection, the district court

sentenced him to eight months imprisonment and three years supervised

release. His term of imprisonment is scheduled to end on December 30,

1995, when he will be released for deportation.

Lazaro-Guadarrama appeals, arguing that the district court erred in

applying a four-level enhancement under section 2L1.2(b)(1).
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II. DISCUSSION

We review de novo the district court's construction of the sentencing

guidelines. See United States v. Ballew, 40 F.3d 936, 943 (8th Cir. 1994),

cert. denied, 115 S. Ct. 1813 (1995). Chapter 2, Part L of the Sentencing

Guidelines pertains to "Offenses involving Immigration, Naturalization, and

Passports." Section 2L1.2 applies to convictions under 8 U.S.C. § 1326.

Section 2L1.2(b)(1) instructs the district court to increase the

defendant's base offense level by four levels "[i]f the defendant

previously was deported after a conviction for a felony, other than a

felony involving violation of the immigration laws." (Emphasis added).

The Sentencing Guidelines do not define "immigration laws." However, 8

U.S.C. § 1101(17) provides the following definition:

The term "immigration laws" includes this Act and all

laws, conventions, and treaties of the United States relating

to the immigration, exclusion, deportation, or expulsion of

aliens.

Under this definition, all "immigration laws" may include laws other than

those of Title 8 of the United States Code, which chapter is entitled

"Aliens and Nationality." The issue is whether Lazaro-Guadarrama's prior

felony conviction under 18 U.S.C. § 1546 constituted a felony "involving

a violation of the immigration laws." Section 2L1.2, comment. (n.3).

In determining that Lazaro-Guadarrama's section 1546 conviction for

possessing a false green card did not fall within the exception as

involving a violation of the immigration laws, the district court relied

on United States v. Sotelo-Carrillo, 46 F.2d 29 (7th Cir. 1995). In

Sotelo-Carrillo, the Seventh Circuit affirmed the district court's

application of a four-level section 2L1.2(b)(1) increase to a defendant who

had been convicted previously of passport fraud and falsely representing

himself to be
 The Sotelo-Carrillo court also cited United States v. 1

Adeleke, 968 F.2d 1159 (11th Cir. 1992), which assumed, without

deciding, that a previous passport-fraud conviction could be used

to enhance a sentence under this guideline provision. SoteloCarrillo, 46 F.3d at 29.

 In 1948, section 1546 was transferred to Title 18 of the 2

United States Code. See 1 U.S.C.C.S., Appendix 2 at A441-42

(1948). This provision was contained in chapter 75 of the Act,

entitled "Passports and Visas." Chapter 69 of the Act, which

also contained provisions transferred to Title 18, was titled

"Nationality and Citizenship." See 1 U.S.C.C.S., Appendix 2 at

A433, A440; see also 18 U.S.C. § 1546, Revision Notes and

Editorial Notes.

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a United States citizen, in violation of 18 U.S.C. §§ 911 and 1542. Id.

at 29. Acknowledging that "Title 8 provides a definition of the

1

immigration laws which would occasionally encompass laws other than those

found in Title 8," the court nonetheless determined that definition to be

"extremely narrow, reaching no criminal conduct beyond that necessarily

committed in connection with the admission or exclusion of aliens" and

"kn[e]w of no laws meeting that specification except those in Title 8 of

the United States Code." Id. Here, the district court acknowledged that

Lazaro-Guadarrama's was a "closer" case and that reasonable minds could

differ on this issue, but nonetheless applied the enhancement. We reject

that analysis.

The definition of "immigration laws" provided in Title 8 is a broad

one. In addition, section 1546--which prohibits knowing use or possession

of a false alien registration receipt card or "other document prescribed

by statute or regulation for entry into or as evidence of authorized stay

or employment in the United States"--was originally part of Title 8, and

had been enacted, with some differences, as part of the Immigration and

Nationality Act of May 26, 1924 (43 Stat. 165). While not specifically

2

regulating immigration itself, section 1546 controls the creation and

possession of documents necessarily connected with immigrants and
 We reject as inapposite the government's cite to United 3

States v. Knight, 514 F.2d 1286 (5th Cir. 1975), for the

proposition that section 1546 is not an immigration law because

United States citizens are subject to prosecution under its

provisions. We note that United States citizens are subject to

criminal prosecution under other statutory provisions which are

clearly immigration laws under the analysis of both the district

court and Sotelo-Carrillo. See, e.g., 8 U.S.C. § 1324 (criminal

liability for "any person" who brings illegal aliens into United

States).

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immigration. We note that the sentencing guideline portion applicable to 3

offenses under section 1546 is also Chapter 2, Part L--the same guidelines

portion applicable to federal immigration law violations. 

Moreover, the term involving in the sentencing guideline of

"involving violation of the immigration laws" presents a loose term,

capable of a broad interpretation. Indeed, the word "involving" is at best

ambiguous. Thus, in any event, the rule of lenity applies to ambiguous

provisions of the Sentencing Guidelines. See United States v. R.L.C., 915

F.2d 320, 325 (8th Cir. 1990), aff'd, 503 U.S. 291 (1992). "The rule of

lenity states that a court cannot interpret a federal criminal statute 'so

as to increase the penalty that it places on an individual when such an

interpretation can be based on no more than a guess as to what Congress

intended.'" Id. The rule of lenity favors the statutory construction

yielding the shorter sentence. Id. The same interpretation applies to the

guideline here.

III. CONCLUSION

We thus conclude that the district court erred in applying the fourlevel enhancement to Lazaro-Guadarrama under the circumstances of this

case. Accordingly, because Lazaro-Guadarrama has now served the full

length of any sentence he may have received absent the four-level

enhancement and lower resultant sentencing range (one to seven months), we

vacate the remainder of Lazaro-
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Guadarrama's sentence and order his immediate release from incarceration.

Let this mandate issue forthwith.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.