Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Franco-Fernandez

January 2, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PETER FRANCO-FERNANDEZ, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 130-James F. Holderman, Chief Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge.

ARGUED MAY 2, 2007

Before EVANS, WILLIAMS, and SYKES, Circuit Judges.

This appeal requires us to decide whether the Illinois offense of "putative father" child abduction, 720 ILL. COMP. STAT. 5/10-5(b)(3), is either a crime of violence or an aggravated felony for purposes of the increased offense levels specified in U.S.S.G. § 2L1.2(b)(1)(A)(ii) and (b)(1)(C) for the crime of illegal re-entry after deportation. We hold that it is neither, and therefore vacate Peter Franco-Fernandez's sentence and remand for resentencing.

I. Background

Peter Franco-Fernandez pleaded guilty to illegal re-entry by a removed alien in violation of 8 U.S.C. § 1326(a). His Presentence Investigation Report ("PSR") recommended an advisory sentencing guidelines range of 70-87 months' imprisonment based in large part on a 16-point increase in his offense level premised upon his removal having followed a conviction for a felony that is a "crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The predicate offense for this enhancement was Franco-Fernandez's 2005 Illinois conviction for so-called "putative father" child abduction, which is committed by one who:

Intentionally conceals, detains or removes the child without the consent of the mother or lawful custodian of the child if the person is a putative fatherand either: (A) the paternity of the child has not been legally established or (B) the paternity . . . has been legally established but no orders relating to custody have been entered.

720 ILL. COMP. STAT. 5/10-5(b)(3) (2004).

Two less significant offense-level enhancements were also possible under section 2L1.2(b): an 8-level increase if the conviction was for an "aggravated felony," section 2L1.2(b)(1)(C), or a 4-level increase if the conviction was for "any other felony," section 2L1.2(b)(1)(D). Franco-Fernandez objected to the PSR and maintained that his "putative father" child abduction conviction did not qualify for the 16-level increase for a crime of violence. The government argued that the Illinois offense was either a crime of violence or an aggravated felony and Franco-Fernandez should receive the 16-level enhancement applicable to the former or at least the 8-level enhancement applicable to the latter. The district court concluded that the 16-level increase was appropriate and sentenced Franco-Fernandez to 70 months' imprisonment, the bottom of the advisory range.

II. Discussion

Franco-Fernandez argues the district court erroneously applied the 16-level enhancement for a crime of violence under section 2L1.2(b)(1)(A)(ii) based on his Illinois conviction for "putative father" child abduction. The classification of a prior conviction under the sentencing guidelines is a legal question subject to de novo review. United States v. Golden, 466 F.3d 612, 613 (7th Cir. 2006).

The illegal re-entry guideline, section 2L1.2, sets a base offense level of 8 and then specifies five possible offense-level enhancements if the defendant was deported after being convicted of a crime. U.S.S.G. § 2L1.2(b)(1)(A)-(E). The size of the enhancement generally corresponds to the severity of the crime the alien committed; the guideline instructs courts to apply the greatest applicable enhancement. U.S.S.G. § 2L1.2(b)(1). Three enhancements are at issue in this case: a 16-level increase for a "crime of violence," section 2L1.2(b)(1)(A)(ii); an 8-level increase for an "aggravated felony," section 2L1.2(b)(1)(C); and a 4-level increase for "any other felony," section 2L1.2(b)(1)(D). Franco-Fernandez maintains his Illinois conviction for "putative father" child abduction is simply "any other felony" and therefore only the 4-level enhancement should have been applied. The government contends that child abduction by a putative father under Illinois law qualifies for either the 16-level crime of violence enhancement or the 8-level aggravated felony enhancement.

A. Crime of Violence

While the term "crime of violence" is used in various contexts in the federal code and sentencing guidelines, the illegal re-entry ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.