United States v. Jose Bercian-Flores

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4504
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE GEOVANI BERCIAN-FLORES, a/k/a Jose Jeovany Bercian-
Flores, a/k/a Jose Geovani Flores-Mendosa, a/k/a Napolean
Villalta,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12−cr−00208−FDW−1)
Argued: January 29, 2015 Decided: May 14, 2015
Before DUNCAN, WYNN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Duncan and Judge Thacker joined.
ARGUED: Richard Lamb Brown, Jr., LAW OFFICES OF RICHARD L.
BROWN, JR., Monroe, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Anne M. Tompkins,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
WYNN, Circuit Judge:
Defendant Jose Bercian-Flores pled guilty to re-entering
the United States as an illegal alien. At sentencing, the
district court imposed a twelve-level enhancement based on
Bercian-Flores’s 1997 felonious conviction for unlawfully
transporting aliens, which the district court determined was an
“offense punishable by imprisonment for a term exceeding one
year” under the U.S. Sentencing Guidelines. U.S.S.G. § 2L1.2
cmt. n.2.
On appeal, Bercian-Flores argues that this Court’s ruling
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc), precludes the enhancement because the Guidelines range
for his 1997 conviction under the then-mandatory Sentencing
Guidelines was zero to six months’ imprisonment. Because the
judge who sentenced Bercian-Flores in 1997 had discretion to
sentence him for up to five years, we conclude that the district
court did not err in imposing the enhancement.
I.
In 1997, Bercian-Flores pled guilty to transportation of an
alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) in the United
States District Court for the Southern District of Texas. The
offense carried a statutory five-year maximum term of
imprisonment. See 8 U.S.C. §§ 1324(a)(1)(A)(ii) and
2
(a)(1)(B)(ii). However, the Guidelines range for Bercian-
Flores’s 1997 conviction was calculated as zero to six months,
and he was sentenced to only 107 days’ imprisonment. Bercian-
Flores was removed to El Salvador on August 27, 1997.
Over a decade later, in May 2012, Bercian-Flores was
arrested in Mecklenburg County, North Carolina and charged with
being found in the United States following his removal
subsequent to the commission of a felony in violation of 8
U.S.C. §§ 1326(a) and (b)(1). He pled guilty to the charge
without entering into a plea agreement.
The probation office prepared a Presentence Report (“PSR”),
which calculated a base offense level of eight and recommended a
twelve-level enhancement pursuant to U.S.S.G. §
2L1.2(b)(1)(A)(vii) (“Unlawfully Entering or Remaining in the
United States”) based on Bercian-Flores’s 1997 alien-smuggling
conviction. Bercian-Flores raised objections to the PSR,
arguing that based upon this Court’s decision in Simmons, his
1997 conviction did not constitute a felony for purposes of
U.S.S.G. § 2L1.2(b)(1) because he could not have received a
sentence of more than one year under the mandatory Sentencing
Guidelines in effect in 1997. The district court denied
Bercian-Flores’s objection, reasoning that Simmons had expressly
distinguished North Carolina’s legislatively mandated sentencing
regime from a guidelines system.
3
The district court therefore held that Bercian-Flores’s
statutory maximum sentence, a five-year term of imprisonment, as
opposed to his Guidelines range, zero to six months of
imprisonment, controlled. After crediting Bercian-Flores with a
three-level reduction for acceptance of responsibility, leaving
him with an offense level of seventeen and a recommended
Guidelines range of twenty-seven to thirty-three months, the
district court sentenced Bercian-Flores to thirty months’
imprisonment. Bercian-Flores appealed.
II.
The U.S. Sentencing Guidelines prescribe a twelve-level
enhancement for defendants who unlawfully re-enter the United
States “after . . . a conviction for a felony that is . . . an
alien smuggling offense.” U.S.S.G. § 2L1.2(b)(1)(A)(vii). The
Guidelines define “felony” as “any federal, state, or local
offense punishable by imprisonment for a term exceeding one
year.” U.S.S.G. § 2L1.2 cmt. n.2 (emphasis added). We review a
district court’s interpretation of the U.S. Sentencing
Guidelines de novo. United States v. McManus, 734 F.3d 315, 318
(4th Cir. 2013).
4
III.
Bercian-Flores argues that the district court erred in
imposing the twelve-level enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(vii) because his 1997 conviction was not
punishable by a term of imprisonment exceeding one year.
Specifically, Bercian-Flores contends that the district court
did not have authority to sentence him to more than six months
because the Guidelines range for his 1997 conviction was zero to
six months, and in 1997 the Guidelines were mandatory. See
United States v. Booker, 543 U.S. 220, 233 (2005). Bercian-
Flores analogizes the pre-Booker Sentencing Guidelines to the
North Carolina Structured Sentencing Act at issue in Simmons.
He argues that the top sentence in his pre-Booker Guidelines
range should guide our analysis of whether his 1997 conviction
constitutes a felony for purposes of U.S.S.G. §
2L1.2(b)(1)(A)(vii).
A.
Under the sentencing regime in which Bercian-Flores was
sentenced in 1997, the U.S. Sentencing Guidelines were
mandatory. See Booker, 543 U.S. at 233 (“The Guidelines as
written . . . are not advisory; they are mandatory and binding
on all judges.”). However, the Guidelines did give discretion
to district courts to depart upward from the applicable
Guidelines range under certain circumstances.
5
Specifically, U.S.S.G. § 5K2.0 (1997) enabled a sentencing
judge to “impose a sentence outside the range established by the
applicable guideline” if the judge found an aggravating
circumstance not adequately taken into consideration by the
Sentencing Commission in formulating the Guidelines. Guideline
5K2.0 further provided that such circumstances “[could not], by
their very nature, be comprehensively listed and analyzed in
advance,” and that the “[p]resence of any such factor may
warrant departure from the guidelines . . . , in the discretion
of the sentencing court.” Id. Additionally, findings
warranting an upward departure need not have been found by a
jury or pled to by the defendant; rather a sentencing judge had
discretion to depart upwards from the Guidelines range so long
as the judge found aggravating facts by a preponderance of the
evidence. See United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005) (recognizing that, both before and after Booker,
decisions about sentencing factors are made by judges on the
preponderance of the evidence) (citing McReynolds v. United
States, 397 F.3d 479, 481 (7th Cir. 2005)).
B.
In the case upon which Bercian-Flores principally relies,
United States v. Simmons, 649 F.3d 237, we considered under what
circumstances a prior North Carolina conviction was punishable
6
by a prison term exceeding one year. 1 649 F.3d at 239. Under
the North Carolina Structured Sentencing Act, sentences were
contingent on two factors: 1) the designated “class of offense”
and 2) the offender’s “prior record level.” Id. at 240. Each
of those factors was established by statute. Once a judge
determined the defendant’s prior record level, the defendant was
then sentenced pursuant to a “statutory table, which provides
three possible sentencing ranges—a mitigated range, a
presumptive range, and an aggravated range.” Id. The
presumptive range governed unless the judge made written
findings that identified specific factors designated by the Act
that permitted a departure to the aggravated or mitigated range.
Id.
Notably, under the Structured Sentencing Act, “[a] judge
may select from the aggravated range only if the State has
provided a defendant thirty-days’ notice of its intent to prove
the necessary aggravating factors and a jury has found beyond a
reasonable doubt (or the defendant has pled to) the existence of
1
Our task in Simmons was to determine whether Simmons’s
prior North Carolina conviction constituted a “felony drug
offense” under the Controlled Substances Act (“CSA”), which
mandates a term of imprisonment of at least ten years if the
offense conduct occurred “after a prior conviction for a felony
drug offense has become final.” 21 U.S.C. § 841(b)(1)(B).
Similarly to the Guideline at issue in this case, the CSA
defines “felony drug offense” as a drug-related “offense that is
punishable by imprisonment for more than one year.” 21 U.S.C. §
802(44).
7
those factors.” Id. Once the judge identified the appropriate
range, the Structured Sentencing Act required the judge to
choose a sentence from within that range. Id. While the judge,
“[i]n rare cases” could impose a lesser sentence upon a finding
of “extraordinary mitigating factors,” the judge had “no
discretion to impose a more severe sentence even in
extraordinary cases.” Id. at 240 n.2 (emphasis added).
Before Simmons, when assessing whether a defendant’s prior
North Carolina offense was punishable by a prison term greater
than one year we looked to “the maximum aggravated sentence that
could be imposed for that crime upon a defendant with the worst
possible criminal history.” United States v. Harp, 406 F.3d
242, 246 (4th Cir. 2005). However, the Supreme Court’s 2010
decision in Carachuri–Rosendo v. Holder, 560 U.S. 563 (2010),
led us to reconsider that approach.
In Carachuri, the Supreme Court examined a provision of the
Immigration and Nationality Act that permitted an alien to seek
cancellation of removal where he “has not been convicted of any
aggravated felony.” 8 U.S.C. § 1229b(a)(3). Aggravated
felonies as defined by the Act were limited to crimes for which
the “maximum term of imprisonment authorized” is “more than one
year.” Carachuri, 560 U.S. at 567 (quoting 18 U.S.C. §
3559(a)). Carachuri had received a twenty–day sentence for
possessing less than two ounces of marijuana in violation of
8
Texas law and a ten–day sentence for possessing a Xanax without
a prescription. The government argued that, hypothetically, had
Carachuri faced federal prosecution for that offense, he could
have been sentenced to two years’ imprisonment. Therefore, the
government contended that his offense was “punishable” by
imprisonment for more than one year.
The Supreme Court unanimously rejected this argument.
Focusing on the INA’s use of the phrase “convicted of a[n]
aggravated felony,” the Supreme Court reasoned that the “text
thus indicates that we are to look to the conviction itself as
our starting place.” Id. at 576. In other words, whether the
conduct underlying the defendant’s prior conviction
hypothetically could have received felony treatment was
irrelevant. See id. at 576–81. Thus the dispositive question
for determining whether a defendant committed an aggravated
felony was simply whether he was actually convicted of an
offense punishable by more than one year in prison.
Applying this reasoning in Simmons, we held that a prior
North Carolina conviction was punishable by imprisonment
exceeding one year only if the particular defendant’s crime of
conviction was punishable under North Carolina law by a prison
term exceeding one year.
9
C.
Bercian-Flores likens the pre-Booker U.S. Sentencing
Guidelines to the Structured Sentencing Act, and contends that
under Simmons, his 1997 conviction was not punishable by a term
of imprisonment exceeding one year because the top of his
mandatory Guidelines range for that conviction was six months.
Bercian-Flores’s argument has some intuitive appeal. In
many ways, the pre-Booker U.S. Sentencing Guidelines were no
less mandatory than North Carolina’s Structured Sentencing Act.
See, e.g., Mistretta v. United States, 488 U.S. 361, 391 (1989)
(“[T]he Guidelines bind judges and courts in the exercise of
their uncontested responsibility to pass sentence in criminal
cases.”). While sentencing judges had discretion to depart
upwards from a Guidelines range, in Booker the Supreme Court
characterized that discretion as exceedingly narrow:
At first glance, one might believe that the ability of
a district judge to depart from the Guidelines means
that she is bound only by the statutory maximum. . . .
Importantly, however, departures are not available in
every case, and in fact are unavailable in most. In
most cases, as a matter of law, the Commission will
have adequately taken all relevant factors into
account, and no departure will be legally permissible.
In those instances, the judge is bound to impose a
sentence within the Guidelines range.
543 U.S. at 234.
Bercian-Flores contends that the judge who sentenced him
for his 1997 alien smuggling conviction found no aggravating
10
factors that warranted an upward departure from the Guidelines
range and, therefore, was no less “bound to impose a sentence
within the Guideline range,” which in his case was less than one
year. Id. Bercian-Flores also points to language in the
Simmons opinion indicating that consideration of hypothetical
aggravating factors was not appropriate when determining a
defendant’s maximum sentence under the Structured Sentencing
Act. In Simmons, we stated that
Carachuri . . . forbids us from considering
hypothetical aggravating factors when calculating
Simmons’s maximum punishment. We again focus first on
Simmons’s “conviction itself,” Carachuri, 130 S. Ct.
at 2586, and his conviction makes clear that he was
neither charged with nor convicted of an aggravated
offense, and that he therefore could not receive a
sentence exceeding one year’s imprisonment.
649 F.3d at 244 (emphasis added). Bercian-Flores contends that,
as in Simmons, the sentencing judge made no factual findings
that warranted an upward departure from his zero-to-six-months
Guidelines range, and that we are prohibited from considering
such “hypothetical aggravating factors” when assessing his
maximum sentence. Id. at 244.
Even if we were inclined to extend our holding in Simmons
in the manner that Bercian-Flores requests, we would be
precluded from doing so by the Supreme Court’s ruling in United
States v. Rodriquez, 553 U.S. 377 (2008). In Rodriquez, the
Supreme Court considered whether Washington state’s mandatory
11
sentencing guidelines could cap the sentence for a conviction
such that it would not qualify as a predicate felony for
purposes of 18 U.S.C. § 924(e)(1). The Court held that the
“maximum term of imprisonment . . . prescribed by law” for an
offense is not “the top sentence in a guideline range.” Id. at
390-91. The Court reasoned that “guidelines systems typically
allow a sentencing judge to impose a sentence that exceeds the
top of the guidelines range under appropriate circumstances.”
Id. at 390. The Supreme Court directly referenced U.S.
Sentencing Guideline § 5K2.0, stating that the Guidelines permit
upward departures in the same manner as “all of the mandatory
guidelines systems in existence at the time of the enactment of
the [Armed Career Criminals Act] provision at issue in this
case.” Id. (emphasis added).
In Simmons we distinguished the mandatory guideline system
at issue in Rodriquez from the legislatively mandated system
that North Carolina adopted. We explained that the Structured
Sentencing Act “does not establish a ‘guidelines system[ ]’;
rather, it mandates specific sentences.” Simmons, 648 F.3d at
244 (citing State v. Norris, 630 S.E.2d 915, 917–18 (N.C.
2006)). Unlike the guidelines systems referred to in Rodriquez,
“no circumstances exist under the Structured Sentencing Act in
which a North Carolina judge may ‘impose a sentence that exceeds
the top’ of the ‘range’ set forth in the Act.” Simmons, 649
12
F.3d at 244 (quoting Rodriquez, 553 U.S. at 390). The
Structured Sentencing Act thus served as “a legislative mandate
and not as a ‘guidelines system[ ].’” Id.
Rodriquez and our interpretation of it in Simmons foreclose
the approach that Bercian-Flores asks us to adopt. As the
Supreme Court made clear, the “maximum term of imprisonment . .
. prescribed by law” for an offense is not “the top sentence in
a guideline range.” Rodriquez, 553 U.S. at 391. Bercian-Flores
makes no attempt to distinguish Rodriquez, and we see no avenue
for doing so. 2
What is more, Bercian-Flores ignores crucial differences
between North Carolina’s Structured Sentencing Act and the
mandatory pre-Booker federal sentencing regime. Under the
Structured Sentencing Act, “an offender can receive an
aggravated sentence only if” inter alia “a jury has found beyond
a reasonable doubt (or the defendant has pled to) the existence
of those factors.” Simmons, 649 F.3d at 240. By contrast, the
pre-Booker Sentencing Guidelines did not specify the aggravating
factors that the judge was authorized to consider and further
2
While it is true that Rodriquez was decided at a time when
the U.S. Sentencing Guidelines were no longer mandatory, the
Court’s reasoning expressly applied to mandatory guidelines
regimes. Indeed the Court’s reference to Section 5K2.0 was
designed to illustrate the type of discretion that sentencing
judges have under mandatory systems. See Rodriquez, 553 U.S. at
390. Thus timing also provides no basis for distinguishing
Rodriquez.
13
did not require that a jury find such factors beyond a
reasonable doubt. See, e.g., Morris, 429 F.3d at 72.
Thus, even under the pre-Booker Guidelines, federal
sentencing judges were not bound by the record of conviction and
were not “mandated” to sentence the defendant in a particular
range in the same way that North Carolina judges were. Rather,
regardless of facts found by the jury or pled to by the
defendant, under the pre-Booker Sentencing Guidelines, the
sentencing judge had discretion to sentence a defendant above
his or her applicable range up to the statutory maximum in
appropriate circumstances.
Our recent decisions in United States v. Kerr, 737 F.3d 33
(4th Cir. 2013), and United States v. Valdovinos, 760 F.3d 322
(4th Cir. 2014), further support the conclusion that the
statutory maximum sentence set by Congress, and not the top
sentence in Bercian-Flores’s Guidelines range, is determinative
of whether his prior conviction constituted a predicate felony.
In Kerr, the defendant argued that his prior North Carolina
state convictions did not qualify as predicate felonies for
sentencing under the Armed Career Criminal Act, because the
sentencing judge sentenced him within the mitigated range rather
than the presumptive range of punishment under the Structured
Sentencing Act. 737 F.3d at 34. The defendant’s maximum
sentence was eleven months based on his mitigated sentence range
14
as found by the sentencing judge and fourteen months under the
presumptive range. We held that the defendant’s presumptive
range determined his maximum term of imprisonment for purposes
of the Armed Career Criminal Act, and, therefore, that his prior
offense qualified as a predicate felony. Even though the
sentencing judge determined that mitigating factors in the
defendant’s case required a lower sentencing range, the fact
that the court had discretion to sentence the defendant at a
higher range controlled. Id. at 38-39.
In Valdovinos, we considered whether a defendant’s prior
drug trafficking conviction qualified as a predicate felony
where the defendant was sentenced pursuant to a plea agreement
that “capped his prison term at 12 months.” 760 F.3d at 324.
We held that where the Structured Sentencing Act authorized a
maximum sentence of sixteen months’ imprisonment, the offense
was punishable by a term of imprisonment exceeding one year even
though the sentence ultimately imposed pursuant to his plea deal
was for less than one year. We explained that
in contrast to North Carolina’s mandatory sentencing
scheme, under which a judge may never “impose a
sentence that exceeds the top of the range set forth
in the Act,” a plea agreement’s recommended sentence
is not the final word under North Carolina law. This
is so because the sentencing judge remains free to
reject the agreement.
Id. at 328 (quoting Simmons, 649 F.3d at 244).
15
Kerr and Valdovinos confirm that the salient question to be
asked after Simmons is whether the sentencing judge could
sentence a particular defendant to a term of imprisonment
exceeding one year. In Simmons, the answer was no. The same
cannot be said for Bercian-Flores. Even under the pre-Booker
Sentencing Guidelines, the district court had discretion to
sentence Bercian-Flores up to the statutory maximum of five
years.
D.
At bottom, Bercian-Flores fails to appreciate that our
holding in Simmons did not change the fact that the cornerstone
of our predicate-felony analysis must be the defendant’s offense
of conviction. Valdovinos, 760 F.3d at 327 (citing Carachuri,
560 U.S. at 576 & 582). “‘[T]he qualification of a prior
conviction [as a sentencing predicate] does not depend on the
sentence [a defendant] actually received’ but on the maximum
sentence permitted” for his offense of conviction. Valdovinos,
760 F.3d at 327 (quoting United States v. Edmonds, 679 F.3d 169,
176 (4th Cir. 2012), vacated on other grounds, 133 S. Ct. 376,
aff’d on remand, 700 F.3d 146 (4th Cir. 2012)).
The U.S. Sentencing Guidelines—whether mandatory or
advisory—cannot change a defendant’s offense of conviction; that
has been defined by Congress. Bercian-Flores was convicted of
unlawfully transporting aliens in violation of 8 U.S.C. §
16
1324(a)(1)(B)(ii) (1994). Congress set the maximum term of
imprisonment for that offense at five years.
IV.
For the foregoing reasons, we hold that the statutory
maximum term of imprisonment of five years set by Congress, and
not the top sentence in Bercian-Flores’s pre-Booker Sentencing
Guidelines range, is determinative of whether he committed a
predicate felony under U.S.S.G. § 2L1.2(b)(1)(A)(vii).
Therefore the district court did not err in overruling Bercian-
Flores’s objection and imposing a twelve-level enhancement for
Bercian-Flores’s 1997 alien-smuggling conviction.
AFFIRMED
17