Argued January 29, 2015
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. (3:12-cr-00208-FDW-1). Frank D. Whitney, Chief District Judge.
Richard Lamb Brown, Jr.,
LAW OFFICES OF RICHARD L. BROWN, JR., Monroe, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Anne M. Tompkins, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Before DUNCAN, WYNN, and THACKER, Circuit Judges. Judge Wynn wrote the opinion, in which Judge Duncan and Judge Thacker joined.
WYNN, Circuit Judge:
Defendant Jose Bercian-Flores pled guilty to re-entering the United States as an illegal alien. At sentencing, the district court imposed a twelve-level enhancement based on Bercian-Flores's 1997 felonious conviction for unlawfully transporting aliens, which the district court determined was an " offense punishable by imprisonment for a term exceeding one year" under the U.S. Sentencing Guidelines. U.S.S.G. § 2L1.2 cmt. n.2.
On appeal, Bercian-Flores argues that this Court's ruling in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), precludes the enhancement because the Guidelines range for his 1997 conviction under the then-mandatory Sentencing Guidelines was zero to six months' imprisonment. Because the judge who sentenced Bercian-Flores in 1997 had discretion to sentence him for up to five years, we conclude that the district court did not err in imposing the enhancement.
In 1997, Bercian-Flores pled guilty to transportation of an alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) in the United States District Court for the Southern District of Texas. The offense carried a statutory five-year maximum term of imprisonment. See 8 U.S.C. § § 1324(a)(1)(A)(ii) and (a)(1)(B)(ii). However, the Guidelines range for Bercian-Flores's 1997 conviction was calculated as zero to six months, and he was sentenced to only 107 days' imprisonment. Bercian-Flores was removed to El Salvador on August 27, 1997.
Over a decade later, in May 2012, Bercian-Flores was arrested in Mecklenburg County, North Carolina and charged with being found in the United States following his removal subsequent to the commission of a felony in violation of 8 U.S.C. § § 1326(a) and (b)(1). He pled guilty to the charge without entering into a plea agreement.
The probation office prepared a Presentence Report (" PSR" ), which calculated a base offense level of eight and recommended a twelve-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(vii) (" Unlawfully Entering or Remaining in the United States" ) based on Bercian-Flores's 1997 alien-smuggling conviction. Bercian-Flores raised objections to the PSR, arguing that based upon this Court's decision in Simmons, his 1997 conviction did not constitute a felony for purposes of U.S.S.G. § 2L1.2(b)(1) because he could not have received a sentence of more than one year under the mandatory Sentencing Guidelines in effect in 1997. The district court denied Bercian-Flores's objection, reasoning that Simmons had expressly distinguished North Carolina's legislatively mandated sentencing regime from a guidelines system.
The district court therefore held that Bercian-Flores's statutory maximum sentence, a five-year term of imprisonment, as opposed to his Guidelines range, zero to six months of imprisonment, controlled. After crediting Bercian-Flores with a three-level reduction for acceptance of responsibility, leaving him with an offense level of seventeen and a recommended Guidelines range of twenty-seven to thirty-three
months, the district court sentenced Bercian-Flores to thirty months' imprisonment. ...