Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 73--Wayne R. Andersen, Judge.
Before CUMMINGS, COFFEY, and MANION, Circuit Judges.
Miguel Cordova-Beraud pled guilty to one count of illegal reentry into the United States after having been previously convicted of an "aggravated felony" (attempted robbery--state conviction) and deported, 8 U.S.C. sec. 1326. He received a 77-month sentence and was ordered deported again. Cordova-Beraud argues that his sentence was improperly enhanced pursuant to U.S.S.G. sec. 2L1.2(b)(2), because his prior state conviction for attempted robbery was not an "aggravated felony." We affirm.
Cordova-Beraud is a citizen of Mexico, with a long criminal career in the United States. He illegally entered the United States for the first time in 1980. In the years 1982 and 1983, he was convicted of several offenses in Denver, Colorado, which included assault, carrying a concealed weapon, petty theft, and first degree criminal trespass, and deported from the United States for the first time on September 23, 1983.
Shortly thereafter, Cordova-Beraud illegally reentered the United States. In 1989 and 1990, he was convicted of several more offenses in Philadelphia, Pennsylvania, including retail theft, receiving stolen property, and attempted theft. After his release, he ran into difficulty with the law in a third state. On June 21, 1991, Cordova-Beraud was convicted of attempted robbery in Cleveland, Ohio, and received an indeterminate sentence of 2 to 10 years' imprisonment. He served less than 3 years of this sentence, and Ohio correctional officials paroled him into the custody of United States immigration officials on January 18, 1994, who deported him a second time on February 3, 1994.
Cordova-Beraud illegally reentered the United States a third time, and once again engaged in further criminal activity. On September 30, 1994, Cordova-Beraud was convicted of attempted robbery in Illinois, and sentenced to 2 years' imprisonment. On February 3, 1995, Illinois correctional officials released him to United States immigration officials, who executed a federal arrest warrant charging Cordova-Beraud with illegally reentering the United States, 18 U.S.C. sec. 1326, *fn1 as evidenced by his Illinois conviction on September 30, 1994.
Cordova-Beraud was subsequently charged in a superseding indictment with illegal re-entry into the United States by an alien that had been previously deported subsequent to a conviction for an aggravated felony, pursuant to 18 U.S.C. sec. 1326(b)(2). (Record No. 14). *fn2 The "aggravated felony" recited in the superseding indictment was CordovaBeraud's 1991 conviction for attempted robbery in Ohio. (Record No. 14). On April 25, 1995, Cordova-Beraud pled guilty to this charge.
The Presentence Report ("PSR") calculated CordovaBeraud's offense level as 21, which included a base offense level of 8 points (U.S.S.G. sec. 2L1.2(a)), a 16-point enhancement because he had previously been deported subsequent to a conviction for an "aggravated felony" (U.S.S.G. sec. 2L1.2(b)(2)), and a 3-point reduction for acceptance of responsibility (U.S.S.G. sec. 3E1.1). As a result of his extensive criminal activity, Cordova-Beraud's criminal history category was VI. His guideline range was determined to be 77-96 months.
The only point of contention at sentencing was whether the enhancement pursuant to U.S.S.G. sec. 2L1.2(b)(2) was proper, based upon the 1991 Ohio conviction for attempted robbery. Section 2L1.2(b)(2) mandates a 16-point enhancement if the alien had previously been deported subsequent to being convicted of an "aggravated felony." See U.S.S.G. sec. 2L1.2(b)(2). The relevant definition of "aggravated felony" had two components: (1) the prior offense had to have been a "crime of violence"; and (2) a term of imprisonment of "at least five years" had to have been "imposed" for the crime. U.S.S.G. sec. 2L1.2, comment. (n.7). While the parties agreed that the Ohio offense was a "crime of violence" for purposes of sec. 2L1.2(b)(2), they disagreed as to whether the indeterminate 2 to 10 year sentence constituted a "term of imprisonment imposed" of at least 5 years.
The government argued the enhancement was proper, and that the correct way to interpret the language of sec. 2L1.2(b)(2) was to look to the general definitions in sec. 4A1.2. Section 4A1.2 defines the term "sentence of imprisonment" as the stated maximum sentence imposed in the judgment, and in the case of an indeterminate sentence, the upper bound is the relevant maximum. *fn3 The government argued Cordova-Beraud's 2 to 10 year sentence was properly deemed a 10-year sentence for purposes of sec. 2L1.2(b)(2). Defendant-appellant Cordova-Beraud argued that sec. 4A1.2 applies to calculating one's criminal history category but not to increases in offense level under sec. 2L1.2. He asserted that the Commission selected different terminology for the respective sections, intending different standards would apply. Cordova-Beraud maintained that "term of imprisonment imposed" meant time actually served, and, because he served less than 3 years for the Ohio attempted robbery, the enhancement was improper. Cordova-Beraud argued that his interpretation was the only equitable one, given that differing jurisdictions will have varying rules regarding good time and other sentence credits. *fn4
The district judge accepted the government's position. *fn5 Judge Andersen sentenced Cordova-Beraud to 77 months' imprisonment, 3 years' supervised release, no fine, and a $50 special assessment. Judge Andersen also ordered that Cordova-Beraud be turned over to immigration ...