United States v. Ruben Paz-Giron , 833 F.3d 836 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1554
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUBEN A. PAZ-GIRON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois
No. 15-CR-20059-01 — Colin S. Bruce, Judge.
____________________
ARGUED AUGUST 9, 2016 — DECIDED AUGUST 17, 2016
____________________
Before BAUER, POSNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Ruben Paz-Giron, a 46-year-old citi-
zen 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
2 No. 16-1554
not qualify for the adjustment, we vacate the sentence and
remand for resentencing.
I. Background
Paz-Giron entered the United States without authoriza-
tion 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 Guide-
lines range of 24 to 30 months based on a total offense level
of 13 and a criminal-history category of IV. The key deter-
minant was the application of an 8-level upward adjustment
under § 2L1.2(b)(1)(C), which applies to aliens who “unlaw-
fully 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 presen-
No. 16-1554 3
tence report also stated, mistakenly, that the statutory max-
imum 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 subse-
quent 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 convic-
tion for an aggravated felony.” § 2L1.2(b)(1)(C). Paz-Giron
argues that he does not meet this condition because he was
4 No. 16-1554
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 adjust-
ment applies to him only if he can be said to have “unlawful-
ly remained in the United States” after such a conviction.
§ 2L1.2(b)(1)(C). The term “unlawfully remained” is helpful-
ly 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 ad-
justment 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 be-
fore his aggravated-felony conviction, so he did not “unlaw-
fully 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 convic-
tion 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 and unpersuasive” the
argument that the guideline applies to defendants removed
before an aggravated-felony conviction).
No. 16-1554 5
The government offers two alternative interpretations of
the application note. The first alternative reads the note as
simply giving an example of one circumstance in which the
adjustment should apply. This reading ignores the actual
language of the note, which is categorical, not exemplary.
The note explains that the adjustment applies “if the defend-
ant remained in the United States following a removal order
issued after a conviction” for one of the crimes listed in the
guideline—here, an aggravated felony. § 2L1.2 cmt.
n.1(A)(iii); see Stinson v. United States, 508 U.S. 36, 38 (1993)
(“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.”). This text is
not phrased as a mere example.
The government’s second proposed interpretation is even
less compelling. Seizing on the note’s reference to
“a conviction” rather than “the conviction,” the government
suggests that the 8-level adjustment applies if the defendant
remained in this country following a removal order issued
after any conviction, even if the conviction was not for an
aggravated felony. On this understanding, the increase was
appropriate here because Paz-Giron remained in this coun-
try following a removal order issued after he sustained
several convictions for drunk driving; it doesn’t matter that
the removal order was issued long before the aggravated-
felony conviction.
This strained reading creates a glaring inconsistency be-
tween the guideline itself and its interpretative note. The text
of the guideline tells us that the relevant conviction for
purposes of the 8-level increase is “a conviction for an
6 No. 16-1554
aggravated felony.” § 2L1.2(b)(1)(C). Under the govern-
ment’s proposed interpretation, the 8-level adjustment
would be triggered if the defendant remained in this country
following a removal order issued after any conviction—even
one for a trivial offense like jaywalking—as long as the
defendant was convicted of an aggravated felony sometime
later. That tortured interpretation cannot be correct.
We note as well that the government’s proposed alterna-
tive interpretations of the note are inconsistent with the
purpose of § 2L1.2(b)(1)(C). Years ago we emphasized that
this guideline is keyed to “the seriousness of the crime
committed, ratcheting up the sentence because it is a more
serious offense to return after deportation when the defend-
ant has previously committed a serious crime.” United States
v. Gonzalez, 112 F.3d 1325, 1330 (7th Cir. 1997) (construing an
earlier version of § 2L1.2(b)). That understanding is con-
sistent with the statutory scheme; section 1326(b)(2) raises
the maximum sentence from 2 to 20 years for aliens who
were removed “subsequent to” a conviction for an aggravat-
ed felony. See Sanchez-Mota, 319 F.3d at 4 (recognizing that
“[i]t makes little sense for the government to suggest that
U.S.S.G. § 2L1.2(b)(1)(C) would require an automatic statuto-
ry maximum sentence” for defendants removed before a
conviction for an aggravated felony). As we’ve noted, the
judge correctly recognized that the higher statutory maxi-
mum does not apply to Paz-Giron because his removal order
and aggravated-felony conviction did not occur in the
proper sequence. For precisely the same reason, the judge
shouldn’t have applied the 8-level Guidelines adjustment
either.
No. 16-1554 7
Without the 8-level increase, the Guidelines range is 6 to
12 months rather than 24 months. See U.S.S.G. ch. 5, pt. A,
and § 3E1.1. A miscalculation of the advisory range is ordi-
narily enough to establish prejudice for purposes of plain-
error review. That standard requires the defendant to show
“a reasonable probability that, but for the error, the outcome
of the proceeding would have been different.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal
quotation marks omitted). Molina-Martinez held that “[w]hen
a defendant is sentenced under an incorrect Guidelines
range[,] … the error itself can, and most often will, be suffi-
cient to show a reasonable probability of a different outcome
absent the error.” Id. at 1345 (emphasis added). Moreover,
we’ve emphasized that “[w]hen a district court incorrectly
calculates the [G]uideline[s] range, we normally presume the
improperly calculated [G]uideline[s] range influenced the
judge’s choice of sentence, unless he says otherwise.” United
States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014). The normal
presumption applies here.
Accordingly, we VACATE the sentence and REMAND for
resentencing. In light of the exigencies here, the mandate
shall issue forthwith and resentencing should be expedited.