United States v. Lopez, 2011 U.S. App. LEXIS 4375

Lopez was convicted in Illinois state court in 2004 for drug trafficking and received 180 days in jail and 48 months of probation.
He was deported in 2006 after the state conviction.
Lopez later reentered illegally and was detained by DHS on Feb 18, 2009.
In April 2009, while in federal custody, the state probation sentence was revoked, and Lopez was sentenced to three years in prison for the probation violation.
On July 21, 2009, federal authorities indicted Lopez for illegal reentry after deportation; he pled guilty and was sentenced to 74 months under the sixteen-level enhancement of § 2L1.2(b)(1)(A)(i).
Lopez argues that only the twelve-level enhancement based on the pre-deportation sentence should apply.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2L1.2(b)(1)(A)(i) uses the pre-deportation sentence or includes later probation revocation.	Lopez argues the pre-deportation sentence (12 levels) should govern.	The government argues the later post-deportation sentence is immaterial; the sixteen-level enhancement should apply.	The later probation-revocation sentence should not count; use pre-deportation sentence.
Whether the guideline's text requires timing of the sentence to be before deportation for the enhancement to apply.	Lopez emphasizes the past tense “imposed” refers to pre-deportation sentence.	Government contends timing is irrelevant; any conviction leading to a sentence over 13 months can trigger the enhancement.	Temporal restriction applies; enhancement requires the over-13-month sentence to have been imposed before deportation.
Whether the government-following commentary supports its interpretation.	Lopez challenges using commentary to override timing.	Government relies on commentary equating “sentence imposed” with imprisonment, including revocation terms.	Commentary does not alter the plain timing requirement; cannot apply the sixteen-level enhancement here.

Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000) (holding that pre-deportation sentence controls where probation/late revocation does not form the aggravated felony)
Compres-Paulino, 393 F.3d 116 (2d Cir. 2004) (held sixteen-level enhancement could apply based on later revocation when pre-deportation sentence did not exceed threshold)
Huerta-Moran, 352 F.3d 766 (2d Cir. 2003) (counted revocation sentence toward 13-month threshold for purposes of enhancement)
Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010) (warned against broad application of sixteen-level enhancement based on probation-related conduct after deportation)
Sanner, 565 F.3d 400 (7th Cir. 2009) (discretion to consider 3553(a) factors; harmless error principles discussed)