United States v. Bercian-Flores, No. 13-4504 (4th Cir. 2015)
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Defendant pled guilty to reentering the United States as an illegal alien and the district court imposed a twelve-level sentencing enhancement based on his prior felonious conviction for unlawfully transporting aliens. On appeal, defendant argued that the Court's ruling in United States v. Simmons precludes the enhancement because the Guidelines for his prior conviction under the then-mandatory Sentencing Guidelines was zero to six months' imprisonment. The court affirmed the sentence, concluding that the district court did not err in imposing the enhancement because the judge who sentenced defendant for the prior conviction had discretion to sentence him for up to five years.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4504 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSE GEOVANI BERCIAN-FLORES, a/k/a Jose Jeovany BercianFlores, a/k/a Jose Geovani Flores-Mendosa, a/k/a Napolean Villalta, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:12−cr−00208−FDW−1) Argued: January 29, 2015 Decided: May 14, 2015 Before DUNCAN, WYNN, and THACKER, Circuit Judges. Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Duncan and Judge Thacker joined. ARGUED: 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. ON BRIEF: Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. WYNN, Circuit Judge: Defendant the United district Jose States court Bercian-Flores as an imposed Bercian-Flores’s 1997 illegal a pled alien. twelve-level felonious guilty At to re-entering sentencing, enhancement conviction for based the on 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 Guidelines was zero to six months’ imprisonment. Sentencing 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. I. 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. offense carried imprisonment. a See statutory 8 U.S.C. 2 five-year §§ maximum term 1324(a)(1)(A)(ii) The of 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 subsequent to in the the United commission States of U.S.C. §§ 1326(a) and (b)(1). a following felony in his removal violation of 8 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 2L1.2(b)(1)(A)(vii) pursuant (“Unlawfully to Entering or U.S.S.G. 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 U.S.S.G. § did not 2L1.2(b)(1) constitute because he a felony could not for purposes have received of 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. 3 The district court therefore held that Bercian-Flores’s statutory maximum sentence, a five-year term of imprisonment, as opposed to his Guidelines imprisonment, controlled. range, zero to six months of After crediting Bercian-Flores with a three-level reduction for acceptance of responsibility, leaving him with an Guidelines district offense range court imprisonment. of level of seventeen twenty-seven sentenced to and a thirty-three Bercian-Flores to recommended months, thirty the months’ Bercian-Flores appealed. II. The U.S. Sentencing Guidelines prescribe a twelve-level enhancement for defendants who unlawfully re-enter the United States “after . . . a conviction for a felony that is . . . an alien smuggling offense.” Guidelines offense year.” district define punishable “felony” by U.S.S.G. § 2L1.2(b)(1)(A)(vii). as “any imprisonment federal, for a state, term Guidelines de novo. interpretation of the local exceeding U.S.S.G. § 2L1.2 cmt. n.2 (emphasis added). court’s or The U.S. one We review a Sentencing United States v. McManus, 734 F.3d 315, 318 (4th Cir. 2013). 4 III. Bercian-Flores imposing the argues twelve-level 2L1.2(b)(1)(A)(vii) punishable by Specifically, that a because term of the district enhancement his 1997 imprisonment Bercian-Flores contends court in U.S.S.G. under erred § conviction exceeding that the was not one year. district court did not have authority to sentence him to more than six months because the Guidelines range for his 1997 conviction was zero to six months, and in 1997 the Guidelines were mandatory. United States v. Booker, 543 U.S. 220, 233 (2005). See Bercian- Flores analogizes the pre-Booker Sentencing Guidelines to the North Carolina Structured Sentencing Act at issue in Simmons. He argues that the top sentence in his pre-Booker Guidelines range should guide our analysis of whether his 1997 conviction constitutes a felony for purposes of U.S.S.G. § Bercian-Flores was 2L1.2(b)(1)(A)(vii). A. Under sentenced the sentencing in 1997, mandatory. the regime U.S. in which Sentencing Guidelines were See Booker, 543 U.S. at 233 (“The Guidelines as written . . . are not advisory; they are mandatory and binding on all judges.”). to district However, the Guidelines did give discretion courts to depart upward from Guidelines range under certain circumstances. 5 the applicable Specifically, U.S.S.G. § 5K2.0 (1997) enabled a sentencing judge to “impose a sentence outside the range established by the applicable guideline” circumstance not if adequately the judge taken found into an aggravating consideration Sentencing Commission in formulating the Guidelines. by the Guideline 5K2.0 further provided that such circumstances “[could not], by their very nature, be comprehensively listed and analyzed in advance,” and that the “[p]resence of any such factor may warrant departure from the guidelines . . . , in the discretion of the sentencing court.” Id. Additionally, findings warranting an upward departure need not have been found by a jury or pled to by the defendant; rather a sentencing judge had discretion to depart upwards from the Guidelines range so long as the judge found aggravating facts by a preponderance of the evidence. Cir. 2005) See United States v. Morris, 429 F.3d 65, 72 (4th (recognizing that, both before and after Booker, decisions about sentencing factors are made by judges on the preponderance of the evidence) (citing McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005)). B. In the case upon which Bercian-Flores principally relies, United States v. Simmons, 649 F.3d 237, we considered under what circumstances a prior North Carolina conviction was punishable 6 by a prison term exceeding one year. 1 the North Carolina Structured 649 F.3d at 239. Sentencing Act, Under sentences were contingent on two factors: 1) the designated “class of offense” and 2) the offender’s “prior record level.” of those factors was established by Id. at 240. statute. Once a Each judge determined the defendant’s prior record level, the defendant was then sentenced pursuant to a “statutory table, which provides three possible sentencing presumptive range, presumptive range and an governed ranges—a mitigated range.” aggravated unless the range, Id. judge made a The written findings that identified specific factors designated by the Act that permitted a departure to the aggravated or mitigated range. Id. Notably, under the Structured Sentencing Act, “[a] judge may select from the aggravated range only if the State has provided a defendant thirty-days’ notice of its intent to prove the necessary aggravating factors and a jury has found beyond a reasonable doubt (or the defendant has pled to) the existence of 1 Our task in Simmons was to determine whether Simmons’s prior North Carolina conviction constituted a “felony drug offense” under the Controlled Substances Act (“CSA”), which mandates a term of imprisonment of at least ten years if the offense conduct occurred “after a prior conviction for a felony drug offense has become final.” 21 U.S.C. § 841(b)(1)(B). Similarly to the Guideline at issue in this case, the CSA defines “felony drug offense” as a drug-related “offense that is punishable by imprisonment for more than one year.” 21 U.S.C. § 802(44). 7 those factors.” range, the Id. Once the judge identified the appropriate Structured Sentencing Act required choose a sentence from within that range. Id. the judge to While the judge, “[i]n rare cases” could impose a lesser sentence upon a finding of “extraordinary discretion to mitigating impose extraordinary cases.” a factors,” more the severe judge had sentence “no even in Id. at 240 n.2 (emphasis added). Before Simmons, when assessing whether a defendant’s prior North Carolina offense was punishable by a prison term greater than one year we looked to “the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” 242, 246 (4th Cir. 2005). United States v. Harp, 406 F.3d However, the Supreme Court’s 2010 decision in Carachuri–Rosendo v. Holder, 560 U.S. 563 (2010), led us to reconsider that approach. In Carachuri, the Supreme Court examined a provision of the Immigration and Nationality Act that permitted an alien to seek cancellation of removal where he “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). Aggravated felonies as defined by the Act were limited to crimes for which the “maximum term of imprisonment authorized” is “more than one year.” 3559(a)). Carachuri, Carachuri 560 had U.S. at received 567 (quoting a twenty–day 18 U.S.C. sentence § for possessing less than two ounces of marijuana in violation of 8 Texas law and a ten–day sentence for possessing a Xanax without a prescription. The government argued that, hypothetically, had Carachuri faced federal prosecution for that offense, he could have been sentenced to two years’ imprisonment. government contended that his offense was Therefore, the “punishable” by imprisonment for more than one year. The Focusing Supreme on the Court unanimously INA’s use of the rejected phrase this argument. “convicted of a[n] aggravated felony,” the Supreme Court reasoned that the “text thus indicates that we are to look to the conviction itself as our starting place.” conduct underlying hypothetically irrelevant. for was could defendant’s have received whether simply In other words, whether the the See id. at 576–81. determining felony Id. at 576. a whether felony conviction treatment was Thus the dispositive question defendant he prior was committed actually an aggravated convicted of an offense punishable by more than one year in prison. Applying this reasoning in Simmons, we held that a prior North Carolina conviction was punishable by imprisonment exceeding one year only if the particular defendant’s crime of conviction was punishable under North Carolina law by a prison term exceeding one year. 9 C. Bercian-Flores likens the pre-Booker U.S. Sentencing Guidelines to the Structured Sentencing Act, and contends that under Simmons, his 1997 conviction was not punishable by a term of imprisonment exceeding one year because the top of his mandatory Guidelines range for that conviction was six months. Bercian-Flores’s argument has some intuitive appeal. In many ways, the pre-Booker U.S. Sentencing Guidelines were no less mandatory than North Carolina’s Structured Sentencing Act. See, e.g., Mistretta v. United States, 488 U.S. 361, 391 (1989) (“[T]he Guidelines bind judges and courts in the exercise of their uncontested responsibility to pass sentence in criminal cases.”). While sentencing judges had discretion to depart upwards from a Guidelines range, in Booker the Supreme Court characterized that discretion as exceedingly narrow: At first glance, one might believe that the ability of a district judge to depart from the Guidelines means that she is bound only by the statutory maximum. . . . Importantly, however, departures are not available in every case, and in fact are unavailable in most. In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is bound to impose a sentence within the Guidelines range. 543 U.S. at 234. Bercian-Flores contends that the judge who sentenced him for his 1997 alien smuggling conviction found no aggravating 10 factors that warranted an upward departure from the Guidelines range and, therefore, was no less “bound to impose a sentence within the Guideline range,” which in his case was less than one year. Id. Bercian-Flores Simmons opinion indicating that aggravating factors was defendant’s maximum sentence Act. also not points to language consideration appropriate under the when of in the hypothetical determining Structured a Sentencing In Simmons, we stated that Carachuri . . . forbids us from considering hypothetical aggravating factors when calculating Simmons’s maximum punishment. We again focus first on Simmons’s “conviction itself,” Carachuri, 130 S. Ct. at 2586, and his conviction makes clear that he was neither charged with nor convicted of an aggravated offense, and that he therefore could not receive a sentence exceeding one year’s imprisonment. 649 F.3d at 244 (emphasis added). Bercian-Flores contends that, as in Simmons, the sentencing judge made no factual findings that warranted an upward departure from his zero-to-six-months Guidelines range, and that we are prohibited from considering such “hypothetical maximum sentence. aggravating factors” when assessing his Id. at 244. Even if we were inclined to extend our holding in Simmons in the manner that Bercian-Flores requests, we would be precluded from doing so by the Supreme Court’s ruling in United States v. Rodriquez, 553 U.S. 377 (2008). In Rodriquez, the Supreme state’s Court considered whether 11 Washington mandatory sentencing guidelines could cap the sentence for a conviction such that it would not qualify as purposes of 18 U.S.C. § 924(e)(1). a predicate felony for The Court held that the “maximum term of imprisonment . . . prescribed by law” for an offense is not “the top sentence in a guideline range.” 390-91. Id. at The Court reasoned that “guidelines systems typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range under appropriate circumstances.” Id. at 390. The Supreme Court directly referenced U.S. Sentencing Guideline § 5K2.0, stating that the Guidelines permit upward departures in the same manner as “all of the mandatory guidelines systems in existence at the time of the enactment of the [Armed case.” Career Criminals Act] provision at issue in this Id. (emphasis added). In Simmons we distinguished the mandatory guideline system at issue in Rodriquez from the legislatively mandated system that North Carolina adopted. We explained that the Structured Sentencing Act “does not establish a ‘guidelines system[ ]’; rather, it mandates specific sentences.” 244 (citing 2006)). State v. Norris, 630 Simmons, 648 F.3d at S.E.2d 915, 917–18 (N.C. Unlike the guidelines systems referred to in Rodriquez, “no circumstances exist under the Structured Sentencing Act in which a North Carolina judge may ‘impose a sentence that exceeds the top’ of the ‘range’ set forth in the Act.” 12 Simmons, 649 F.3d at 244 (quoting Rodriquez, 553 U.S. at 390). The Structured Sentencing Act thus served as “a legislative mandate and not as a ‘guidelines system[ ].’” Id. Rodriquez and our interpretation of it in Simmons foreclose the approach that Bercian-Flores asks us to adopt. As the Supreme Court made clear, the “maximum term of imprisonment . . . prescribed by law” for an offense is not “the top sentence in a guideline range.” Rodriquez, 553 U.S. at 391. Bercian-Flores makes no attempt to distinguish Rodriquez, and we see no avenue for doing so. 2 What between is North mandatory Structured more, Bercian-Flores Carolina’s pre-Booker Sentencing ignores Structured federal Act, Sentencing sentencing “an crucial regime. offender can differences Act and the Under the receive an aggravated sentence only if” inter alia “a jury has found beyond a reasonable doubt (or the defendant has pled to) the existence of those factors.” Simmons, 649 F.3d at 240. By contrast, the pre-Booker Sentencing Guidelines did not specify the aggravating factors that the judge was authorized to consider and further 2 While it is true that Rodriquez was decided at a time when the U.S. Sentencing Guidelines were no longer mandatory, the Court’s reasoning expressly applied to mandatory guidelines regimes. Indeed the Court’s reference to Section 5K2.0 was designed to illustrate the type of discretion that sentencing judges have under mandatory systems. See Rodriquez, 553 U.S. at 390. Thus timing also provides no basis for distinguishing Rodriquez. 13 did not require reasonable doubt. Thus, even that a jury find such factors beyond a See, e.g., Morris, 429 F.3d at 72. under the pre-Booker Guidelines, federal sentencing judges were not bound by the record of conviction and were not “mandated” to sentence the defendant in a particular range in the same way that North Carolina judges were. Rather, regardless of by the defendant, under Guidelines, the facts found the by the pre-Booker jury or Sentencing pled to sentencing judge had discretion to sentence a defendant above his or her applicable range up to the statutory maximum in appropriate circumstances. Our recent decisions in United States v. Kerr, 737 F.3d 33 (4th Cir. 2013), and United States v. Valdovinos, 760 F.3d 322 (4th Cir. statutory 2014), maximum further sentence support set by the conclusion Congress, and that the the top not sentence in Bercian-Flores’s Guidelines range, is determinative of whether his prior conviction constituted a predicate felony. In Kerr, the defendant argued that his prior North Carolina state convictions sentencing under did the not qualify Armed Career as predicate Criminal Act, felonies for because the sentencing judge sentenced him within the mitigated range rather than the presumptive range of punishment under the Structured Sentencing Act. 737 F.3d at 34. The defendant’s maximum sentence was eleven months based on his mitigated sentence range 14 as found by the sentencing judge and fourteen months under the presumptive range. We held that the defendant’s presumptive range determined his maximum term of imprisonment for purposes of the Armed Career Criminal Act, and, therefore, that his prior offense qualified sentencing judge as a predicate determined that felony. Even mitigating though factors in the the defendant’s case required a lower sentencing range, the fact that the court had discretion to sentence the defendant at a higher range controlled. Id. at 38-39. In Valdovinos, we considered whether a defendant’s prior drug trafficking conviction qualified as a predicate felony where the defendant was sentenced pursuant to a plea agreement that “capped his prison term at 12 months.” 760 F.3d at 324. We held that where the Structured Sentencing Act authorized a maximum sentence of sixteen months’ imprisonment, the offense was punishable by a term of imprisonment exceeding one year even though the sentence ultimately imposed pursuant to his plea deal was for less than one year. We explained that in contrast to North Carolina’s mandatory sentencing scheme, under which a judge may never “impose a sentence that exceeds the top of the range set forth in the Act,” a plea agreement’s recommended sentence is not the final word under North Carolina law. This is so because the sentencing judge remains free to reject the agreement. Id. at 328 (quoting Simmons, 649 F.3d at 244). 15 Kerr and Valdovinos confirm that the salient question to be asked after sentence Simmons a is particular exceeding one year. whether the defendant to a sentence term judge of Guidelines, Bercian-Flores the up the The same Even under the pre-Booker district to could imprisonment In Simmons, the answer was no. cannot be said for Bercian-Flores. Sentencing sentencing court had statutory discretion maximum to of five that our years. D. At bottom, Bercian-Flores fails to appreciate holding in Simmons did not change the fact that the cornerstone of our predicate-felony analysis must be the defendant’s offense of conviction. 560 U.S. at Valdovinos, 760 F.3d at 327 (citing Carachuri, 576 & 582). “‘[T]he qualification of a prior conviction [as a sentencing predicate] does not depend on the sentence [a defendant] actually received’ but on the maximum sentence permitted” for his offense of conviction. Valdovinos, 760 F.3d at 327 (quoting United States v. Edmonds, 679 F.3d 169, 176 (4th Cir. 2012), vacated on other grounds, 133 S. Ct. 376, aff’d on remand, 700 F.3d 146 (4th Cir. 2012)). The U.S. Sentencing Guidelines—whether mandatory or advisory—cannot change a defendant’s offense of conviction; that has been defined by Congress. unlawfully transporting Bercian-Flores was convicted of aliens 16 in violation of 8 U.S.C. § 1324(a)(1)(B)(ii) (1994). Congress set the maximum term of imprisonment for that offense at five years. IV. For the foregoing reasons, we hold that the statutory maximum term of imprisonment of five years set by Congress, and not the top sentence in Bercian-Flores’s pre-Booker Sentencing Guidelines range, is determinative of whether he committed a predicate felony under U.S.S.G. § 2L1.2(b)(1)(A)(vii). Therefore the district court did not err in overruling BercianFlores’s objection and imposing a twelve-level enhancement for Bercian-Flores’s 1997 alien-smuggling conviction. AFFIRMED 17
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