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