674 F.3d 444
5th Cir.2012Background
- Asencio-Perdomo, a citizen of El Salvador, pleaded guilty in Jan 2011 to unlawful reentry under 8 U.S.C. §§ 1326(a), (b)(1).
- PSR recommended an eight-level aggravated felony enhancement under U.S.S.G. § 2L1.2(b)(1)(C) based on an Indiana theft conviction.
- Asencio-Perdomo had a one-year-six-month Indiana sentence, suspended in favor of probation.
- District court adopted the PSR, applied the eight-level enhancement, and calculated an offense level of 13, yielding an 18–24 month range.
- Asencio-Perdomo objected at sentencing, arguing the Indiana conviction is not an aggravated felony; district court overruled.
- Defendant ultimately was sentenced to 20 months’ imprisonment, two years of supervised release, and a $100 special assessment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Indiana theft conviction is an aggravated felony under § 2L1.2(b)(1)(C). | Asencio-Perdomo asserts the term refers to minimum sentence, not actual sentence. | Asencio-Perdomo contends the minimum-term reading yields non-aggravated status. | Actual sentence controls; Indiana theft qualifies as aggravated felony. |
Key Cases Cited
- United States v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999) (defines aggravation via § 1101(a)(43) by reference to minimum term with missing verb noted)
- United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) (prior conviction with probation first offense without imprisonment; imprisonment counts if suspended)
- United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000) (circuit held the term refers to actual sentence for § 1101(a)(43)(G))
- United States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000) (per curiam; supports actual-sentence reading)
- Alberto-Gonzalez v. INS, 215 F.3d 906 (9th Cir. 2000) (interprets aggravated felony definition consistent with actual sentence)
- United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (supports interpretation of § 1101(a)(43) in related context)