___________ No. 95-3286

___________ 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. *

___________ Submitted: December 13, 1995 Filed: December 14, 1995

___________ Before MAGILL, BRIGHT and MURPHY, Circuit Judges.

___________ BRIGHT, Circuit Judge.
Migue l Lazaro-Guadarrama, a citizen of Mexico, appeals his eight

monthsentence imposed by the district court after he pleaded guilty t o illegally re-enteringthe United States as a deported alien, in violation of 18 U.S.C. § 1326(a) & (b)(1). For reversal, Lazaro-Guadarram a challen ges the district court's imposition of a four-level sentencin g 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 Lazaro

Guadar rama's prior felony related to an immigration law violation whic h 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 resu lt of Lazaro-Guadarrama's entering into the United States withou t insp ection. Lazaro-Guadarrama had attempted to obtain an Iow a iden tificationcard at the Waterloo office of the Iowa Department o f Tran sportationusing a false Alien Registration Receipt card (commonl y known as a "green car d"). His application for an identification card was denied and the false green card was confiscated. Lazaro-Guadarram a admitt ed the charges at his February 1994 deportation hearing, waive d appeal, and was depor ted 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 work ing. Lazaro-Guadarrama was arrested on May 2, 1995, and charged with the instant offense.

Th e 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). Lazaro

Guadarrama's total offense level of 10 and his criminal history category of II (based on his prior felony) resulted in a Guidelines sentencing rang e of e ight to fourteen months. Applying the four-level increase unde r section 2L1.2(b)(1) over Lazaro-Guadarrama's obj ection, the district court senten ced him to eight months imprisonment and three years supervise d release. His term of imprisonment is scheduled to end on December 30 , 1995, when he will be released for deportation.

Lazaro-Gu adarrama 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 sent encing 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, an d Passports." Section 2L1.2 applies to convictions under 8 U.S.C. § 1326. Sectio n 2L1.2(b)(1) instructs the district court to increase th e defend ant's base offense level by four levels "[i]f the defendan t 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 t erm "immigration laws" includes this Act and al l laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, or expulsion o f aliens.

Under this definition , all "immigration laws" may include laws other than tho se of Title 8 of the United States Code, which chapter is entitle d "Aliens and Nationali ty." The issue is whether Lazaro-Guadarrama's prior felonyconviction under 18 U.S.C. § 1546 constituted a felony "involving a violation of the immigration laws." Section 2L1.2, comment. (n.3).

In determ ining that Lazaro-Guadarrama's section 1546 conviction for pos sessing a false green card did not fall within the exception a s involving a violation of the immigration laws, the district court relied
on Uni ted States v. Sotelo-Carrillo , 46 F.2d 29 (7th Cir. 1995). I n Sotelo-Carrillo , the Seventh Circuit affirmed the district court' s application of a four-level section 2L1.2(b)(1) increase to a defendant wh o 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. -4- 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 th e

1 immigration laws whic h would occasionally encompass laws other than those found in Title 8," th e court nonetheless determined that definition to be "extremely narrow, reaching no criminal conduct beyond that necessaril y committed in connection with the admission or exclusion of aliens" an d "kn[e]wof no laws meeting that specification except those in Title 8 of the United States Cod e." Id. Here, the district court acknowledged that Lazaro -Guadarrama's was a "closer" case and that reasonable minds coul d differ on this issue, but nonetheless applied the enhancement. We reject that analysis.

The defin ition 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 regulat ion 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 an d Natio nalityAct of May 26, 1924 (43 Stat. 165). While not specificall y 2 regulat ing immigration itself, section 1546 controls the creation an d 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). -5- immigration. We note that the sent encing guideline portion applicable to 3 offenses under section 1546 is also Chapter 2, P art L--the same guidelines portion applicable to federal immigration law violations.

Moreove r, the term involving in the sentencing guideline o f "invol ving violation of the immigration laws" presents a loose term , capable of a broad interpretation. Indeed, the word "involving" is at bes t ambiguous

. Thus, in any event, the rule of lenity applies to ambiguou s provisions of the Sentencing Guidelines. See Un ited 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 fe deral criminal statute 'so
as to i ncrease the penalty that it places on an individual when such a n interpr etationcan be based on no more than a guess as to what Congres s inten ded.'" Id. The rule of lenity favors the statutory constructio n yielding the shorter sentence. Id. The same interpretation applies to th e guideline here.

III. CONCLUSION

We thus conclude that the district c ourt erred in applying the fourleve l enhancement to Lazaro-Guadarrama under the circumstances of thi s case. Accordingly, because Lazaro-Guadarrama has now served the ful l lengt hof any sentence he may have received absent the four-leve l 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.