August 9, 2016
from the United States District Court for the Central
District of Illinois No. 15-CR-20059-01 Colin S. Bruce,
Bauer, Posner, and Sykes, Circuit Judges.
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
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.
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.
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.
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.
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
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.
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.
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 ...