United States v. Cuevas-Lopez, No. 17-10438 (9th Cir. 2019)
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The Ninth Circuit affirmed defendant's sentence for attempted illegal reentry after deportation. The district court applied a ten-level enhancement to defendant's base offense level under USSG 2L1.2(b)(3)(A), which applies to a defendant charged under 8 U.S.C. 1326 who was previously ordered deported or removed and who subsequently committed a felony offense for which the sentence imposed was five years or more.
The panel held that the single sentence rule in USSG 4A1.2(a)(2) applies to the enhancements in USSG 2L1.2(b)(2) and (b)(3). In this case, the district court aggregated defendant's two 3.5-year sentences to produce a seven-year sentence for purposes of applying the enhancement, relying on section 4A1.2(a)(2). Accordingly, the panel rejected defendant's argument that the district court wrongly applied the single sentence rule in calculating his sentence.
Court Description: Criminal Law. Affirming a sentence for attempted illegal reentry after deportation in violation of 8 U.S.C. § 1326, the panel held that the “single sentence rule” in U.S.S.G. § 4A1.2(a)(2) applies to the enhancements in U.S.S.G. § 2L1.2(b)(2) and (b)(3). The single sentence rule instructs that whether to treat multiple prior sentences as a single sentence depends on whether they were separated by an intervening arrest, charged in the same instrument, or imposed on the same day; and provides that if prior sentences are treated as a single sentence, a court should use the longest sentence of imprisonment if concurrent sentences were imposed and use the aggregate sentence of imprisonment if consecutive sentences were imposed. A state court had previously sentenced the defendant to two consecutive 3.5-year terms imposed on the same day for two second-degree burglary convictions. Because the single sentence rule applies to § 2L1.2, the panel concluded that the district court properly relied on the rule to aggregate the defendant’s two consecutive 3.5-year sentences in applying a ten-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(A), which applies to a defendant charged under § 1326 who was previously ordered deported or removed and who subsequently committed a felony UNITED STATES V. CUEVAS-LOPEZ 3 offense for which the sentence imposed was five years or more. Dissenting, Judge Ikuta wrote that under the plain language of the Sentencing Guidelines, the defendant does not have “a conviction for a felony offense . . . for which the sentence imposed was five years or more,” U.S.S.G. § 2L1.2; and that the applicable Guidelines range should not be increased based solely on inferences regarding the Sentencing Commission’s unspoken intent.
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