United States v. Hernandez Martinez, No. 17-50026 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit vacated defendant's sentence for illegal reentry. At sentencing, the district court applied an eight-level enhancement under USSG 2L1.2(b)(2)(B) of the 2016 United States Sentencing Guidelines, which was applicable if, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more. In this case, although defendant sustained a felony conviction for lewd conduct with a child before he was first ordered deported, he was sentenced to only one year of incarceration before his first deportation order; the sentence was increased to three years of incarceration after he returned to the United States. Therefore, the panel held that defendant's conviction did not qualify for the enhancement under 2L1.2(b)(2)(B).
Court Description: Criminal Law. The panel vacated a sentence for illegal reentry, in a case in which the district court applied an enhancement under U.S.S.G. § 2L1.2(b)(2)(B), which, as amended in 2016, applies “[i]f, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained . . . a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more.” The defendant, who sustained a felony conviction before he was first deported, was sentenced to only one year of incarceration before his first deportation order; the sentence was increased to three years of incarceration when his probation was revoked after he returned to the United States. The panel held that when viewed in its historical context, the amended § 2L1.2(b)(2)(B) is best read as carrying forward the Sentencing Commission’s prior, unambiguous conclusion that a qualifying sentence must be imposed before the defendant’s first order of deportation or removal. The panel concluded that because the defendant’s qualifying prior felony conviction did not incur a sentence of two years or more until after he had been deported for the first time, he did not qualify for an enhancement under § 2L1.2(b)(2)(B) (2016). The panel remanded for resentencing. UNITED STATES V. HERNANDEZ MARTINEZ 3
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