United States v. Yomar Moran-Rosario , 466 F. App'x 257 ( 2012 )


Menu:
  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4674
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    YOMAR MORAN-ROSARIO, a/k/a Yomar Rosario,            a/k/a   Antonio
    Moran, a/k/a Eliezer Maldonado-Cabrera,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
    Judge. (8:10-cr-00221-DKC-1)
    Submitted:   December 30, 2011            Decided:    February 16, 2012
    Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Richard S. Basile, Greenbelt, Maryland, for Appellant.     Rod J.
    Rosenstein, United States Attorney, Jonathan C. Su, Assistant
    United States Attorney, Greenbelt, Maryland, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Yomar       Moran-Rosario        pled          guilty     to    illegal   reentry
    after deportation following conviction for an aggravated felony,
    in    violation         of    
    8 U.S.C. § 1326
    (a),             (b)(2)    (2006),   and     was
    sentenced below the Guidelines range to a term of thirty months’
    imprisonment.            Moran-Rosario appealed his sentence, contending
    that   the       district         court       erred       in    making     a    16-level   increase
    under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2010),
    based on a prior drug conviction which had been vacated.                                            We
    affirm.
    The     district         court’s              legal     interpretation       of     a
    Guideline is reviewed de novo.                        United States v. Montgomery, 
    262 F.3d 233
    , 250 (4th Cir. 2001).                        As he did in the district court,
    Moran-Rosario relies on United States v. Mejia, 
    278 F. Supp. 2d 55
        (D.   Mass.        2003).           In    Mejia,          the    defendant’s    prior      drug
    conviction had been vacated for insufficient evidence.                                       Mejia,
    
    278 F. Supp. 2d at 56
    .      The       Massachusetts          district    court
    reasoned that such a vacated conviction could not support an
    enhancement under § 2L1.2 without violating due process.                                     Id. at
    62.    The court also noted that the commentary to USSG § 4A1.2
    barred      a    conviction            ruled    invalid          for    constitutional      reasons
    from being counted in the defendant’s criminal history or used
    to increase his offense level for a firearms offense under USSG
    § 2K2.1.         Id. at 61.             The court decided that the commentary to
    2
    § 2L1.2   “suggest[ed]    the    same   approach.”       Id.     Further,       the
    court   decided   that   the    relevant    time   period   is    the    time    of
    sentencing for the illegal reentry offense, not the time of the
    illegal reentry as urged by the government.             Id. at 57.
    However, Mejia is not helpful to Moran-Rosario and the
    weight of circuit authority is contrary to his position.                  First,
    the circuits that have addressed the issue have all held that,
    where a prior conviction that qualifies for an enhancement under
    § 2L1.2(b)(1)(A) has been vacated or reduced to a non-qualifying
    conviction, the relevant time for determining whether a prior
    conviction    qualified    for    enhancement      is    the     date    of     the
    defendant’s deportation rather than the date of his sentencing
    for illegal reentry.       See United States v. Salazar-Mojica, 
    634 F.3d 1070
    , 1073-74 (9th Cir.) (felony reduced to misdemeanor),
    cert. denied, 
    132 S. Ct. 348
     (2011); United States v. Orduno-
    Mireles, 
    405 F.3d 960
    , 962 & n.1 (11th Cir. 2005) (although
    prior     conviction     vacated,       relevant     time      was      time     of
    deportation); United States v. Garcia-Lopez, 
    375 F.3d 586
    , 588
    (7th Cir. 2004) (same); United States v. Luna-Diaz, 
    222 F.3d 1
    ,
    4 (1st Cir. 2000) (same); United States v. Campbell, 
    167 F.3d 94
    , 98 (2d Cir. 1999) (conviction set aside when probation term
    completed); United States v. Cisneros-Cabrera, 
    110 F.3d 746
    , 748
    (10th Cir. 1997) (conviction vacated).              When Moran-Rosario was
    3
    deported in 2008, he had the requisite qualifying felony drug
    trafficking conviction.
    As the district court noted in Mejia, 
    278 F. Supp. 2d at 62
    ,   the    First     Circuit       in       Luna-Diaz   recognized        that   its
    decision did not address “a prior conviction vacated as a result
    of    constitutional           infirmity,           egregious   error    of       law,    or
    determination of innocence,” and did not exclude the possibility
    that a § 2L1.2(b) enhancement based on such a conviction “might
    in some limited circumstances raise constitutional due process
    concerns.”            
    222 F.3d at
    6        n.5.    Moran-Rosario         has    not
    established that any of these factors is present in his case.
    Thus, to the extent that he relies on Padilla v. Kentucky, 
    130 S. Ct. 1473
     (2010) (holding that failure to advise defendant
    that guilty plea would subject him to automatic deportation was
    ineffective assistance), his claim is unsupported by the record,
    which does not disclose the reason his conviction was vacated.
    Moreover, despite Mejia’s focus on the commentary to
    § 4A1.2     as    a    basis    for    barring         consideration    of    a    vacated
    conviction under § 2L1.2(b), Cisneros-Cabrera held that § 2L1.2
    does not import this limitation from § 4A1.2.                      Cisneros-Cabrera,
    
    110 F.3d at 748
    .      Although        Application     Note    1(B)(vii)        and
    Application Note 4 to § 2L1.2 cross reference to § 4A1.2, they
    do so only with respect to the meaning of “sentence imposed” and
    “three or more convictions.”                   Thus, Moran-Rosario’s reliance on
    4
    United    States     v.    Reinoso,      
    350 F.3d 51
       (2d    Cir.    2003),    is
    misplaced.       The Second Circuit was concerned in that case with
    whether, under its precedent governing a state youthful offender
    adjudication, United States v. Driskell, 
    277 F.3d 150
     (2d Cir.
    2002), the defendant’s adult New York armed robbery conviction
    could be considered to calculate his offense level for illegal
    reentry although the robbery conviction was vacated when he was
    adjudicated      a   youthful      offender.     Reinoso     does    not    hold,   as
    Moran-Rosario asserts, that there is in general no distinction
    between the criminal history calculation and the offense level
    calculation in applying the sentencing Guidelines.
    We conclude that, in light of these decisions, the
    district court did not err in applying the enhancement based on
    Moran-Rosario’s prior drug-trafficking conviction even though it
    had been vacated. *        We therefore affirm the sentence imposed by
    the district court.             We dispense with oral argument because the
    facts    and    legal     contentions     are    adequately       presented    in   the
    materials      before     the    court   and    argument     would    not     aid   the
    decisional process.
    AFFIRMED
    *
    Guidelines section 2L1.2(b)(1)(A) was recently amended to
    clarify this issue and now provides for a 12-level increase if a
    prior qualifying conviction is not counted in the defendant’s
    criminal history.     See Amendment 754, eff. Nov. 1. 2011.
    Amendment 754 is not retroactive. See USSG § 1B1.10(c).
    5