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United States v. Paz-Giron

United States Court of Appeals, Seventh Circuit

August 17, 2016

United States of America, Plaintiff-Appellee,
v.
Ruben A. Paz-Giron, Defendant-Appellant.

          Argued August 9, 2016

         Appeal from the United States District Court for the Central District of Illinois No. 15-CR-20059-01 Colin S. Bruce, Judge.

          Before Bauer, Posner, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Ruben Paz-Giron, a 46-year-old citizen of Mexico, pleaded guilty to being unlawfully present in the United States after removal, 8 U.S.C. § 1326(a), and was sentenced to 24 months in prison. He claims that the district court misapplied an 8-level upward adjustment in the Sentencing Guidelines for aliens who unlawfully remain in the United States after being convicted of an aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(C). Because Paz-Giron does not qualify for the adjustment, we vacate the sentence and remand for resentencing.

         I. Background

         Paz-Giron entered the United States without authorization around 1985 when he was 15 years old. His early years here were uneventful, but between 1998 and 2001, he was convicted four times in California for driving under the influence of alcohol. He was removed to Mexico in 2002.

         Sometime later Paz-Giron returned to the United States and had further run-ins with the law. In January 2013 he was again convicted of driving under the influence. Two months later he pleaded guilty to identity theft for using someone else's personal information to obtain medical services from a local hospital. This offense was an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) because it involved more than $10, 000 in loss to the victim. In 2015 he was convicted of yet another DUI.

         In late 2015 a federal grand jury indicted Paz-Giron for being unlawfully present in the United States after removal. He pleaded guilty. The probation office calculated a Guidelines range of 24 to 30 months based on a total offense level of 13 and a criminal-history category of IV. The key determinant was the application of an 8-level upward adjustment under § 2L1.2(b)(1)(C), which applies to aliens who "unlawfully remain[] in the United States, after ... a conviction for an aggravated felony." The probation office applied this adjustment based on Paz-Giron's 2013 conviction for identity theft-a conviction that occurred years after he was removed to Mexico and returned to the United States. The presentence report also stated, mistakenly, that the statutory maximum penalty was 20 years.

         At sentencing the government advised the court that Paz-Giron's statutory-maximum sentence was 2 years rather than 20 years, as stated in the presentence report. The higher maximum applies only to aliens "whose removal was subsequent to a conviction for commission of an aggravated felony, " 8 U.S.C. § 1326(b)(2), and as the government acknowledged, Paz-Giron had been removed before his aggravated-felony conviction for identity theft. The district judge noted the correction, applied the 8-level adjustment under § 2L1.2(b)(1)(C), and imposed a 24-month sentence, the statutory maximum.

         II. Discussion

         Paz-Giron's appeal raises a single issue: Was it error to apply the 8-level upward adjustment under § 2L1.2(b)(1)(C)? This issue is new on appeal, so our review is for plain error. Henderson v. United States, 133 S.Ct. 1121, 1124 (2013); Fed. R. Crim. P. 52(b). We may correct a forfeited error if (1) the error is "plain"; (2) affects the defendant's "substantial rights"; and (3) "seriously affects the fairness, integrity, or public reputation of [the] judicial proceedings." Henderson, 133 S.Ct. at 1126-27 (quotation marks omitted).

         The offense guideline applicable to Paz-Giron's § 1326(b)(2) conviction instructs the court to apply an 8-level increase "[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for an aggravated felony." § 2L1.2(b)(1)(C). Paz-Giron argues that he does not meet this condition because he was removed in 2002, long before he committed the aggravated felony of identity theft.

         He is correct. Paz-Giron was not "deported ... after ... a conviction for an aggravated felony/' so the 8-level adjustment applies to him only if he can be said to have "unlawfully remained in the United States" after such a conviction. § 2L1.2(b)(1)(C). The term "unlawfully remained" is helpfully defined in an application note that is quite specific in describing the sequence in which the removal order and the relevant conviction must take place: "A defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction." § 2L1.2 cmt. n.1(A)(iii) (emphasis added). That is, the adjustment applies only if the defendant unlawfully remained in this country following a removal order issued after the relevant conviction-here a conviction for an aggravated felony.

         Paz-Giron was removed from the United States long before his aggravated-felony conviction, so he did not "unlawfully remain" in this country as that term is defined in the application note. See United States v. Martinez-Garcia,268 F.3d 460, 466 (7th Cir. 2001) (recognizing that the guideline applies "where the deportation was subsequent to a conviction for an aggravated felony"); United States v. Nevares-Bustamante,669 F.3d 209, 213 (5th Cir. 2012) (reaching same conclusion); United States v. Sanchez-Mota,319 F.3d 1, 3-4 (1st Cir. 2002) (spurning as "unsupported ...


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