United States v. Jose Bercian-Flores, 786 F.3d 309

In 1997 Bercian-Flores pled guilty in federal court to transporting an alien (8 U.S.C. § 1324); the statute carried a five-year statutory maximum, but his Guidelines range then was 0–6 months and he received 107 days.
He was removed to El Salvador in 1997 and later re-entered the U.S.; in 2012 he pled guilty to illegal reentry (8 U.S.C. §§ 1326(a), (b)(1)).
The PSR applied a 12-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(vii) based on the 1997 alien-smuggling conviction being a predicate felony (defined as punishable by >1 year).
Bercian-Flores objected, arguing (relying on United States v. Simmons) that because his 1997 mandatory Guidelines range was 0–6 months, the conviction was not punishable by >1 year and thus not a predicate felony.
The district court overruled the objection, treated the statutory five-year maximum as controlling, imposed the enhancement, and sentenced him to 30 months; the Fourth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a prior conviction is a "felony" under U.S.S.G. § 2L1.2 when the pre-Booker Guidelines range was ≤1 year	Bercian-Flores: pre-Booker mandatory Guidelines capped his possible sentence at 6 months, so his prior conviction was not punishable by >1 year (Simmons analog)	Government: statutory maximum set by Congress (5 years) — and pre-Booker Guidelines allowed upward departures, so the statutory maximum controls	The statutory maximum (5 years) controls; the enhancement was proper
Whether Simmons requires looking to the actual sentence range imposed under mandatory systems rather than the statutory maximum	Bercian-Flores: Simmons forbids considering hypothetical or unexercised aggravating factors; look to the Guideline range actually applicable at sentencing	Government: Simmons distinguished North Carolina’s legislatively mandated system from federal pre-Booker Guidelines; federal judges could depart upward so guidelines range is not a cap	Simmons does not apply to pre-Booker federal Guidelines; Rodriquez and subsequent Fourth Circuit decisions control

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (held North Carolina Structured Sentencing convictions are not predicates unless the conviction itself authorized >1 year)
United States v. Booker, 543 U.S. 220 (2005) (held federal Guidelines advisory; described limited scope of permissible departures under mandatory regime)
United States v. Rodriquez, 553 U.S. 377 (2008) (the statutory maximum is not the top of a Guidelines range; guidelines may allow upward sentences)
Carachuri–Rosendo v. Holder, 560 U.S. 563 (2010) (look to the conviction itself, not hypothetical treatment, when assessing whether prior offense is punishable by >1 year)
United States v. Kerr, 737 F.3d 33 (4th Cir. 2013) (presumptive range controls for predicate analysis where judge could have imposed higher range)
United States v. Valdovinos, 760 F.3d 322 (4th Cir. 2014) (a plea agreement capping sentence does not alter whether statute authorized >1 year when judge could reject the agreement)
United States v. McManus, 734 F.3d 315 (4th Cir. 2013) (review of Guidelines interpretation is de novo)