United States v. Nevares-Bustamante
669 F.3d 209
5th Cir.2012Background
- Nevares-Bustamante, a Mexican citizen, was deported in 1989 and reentered illegally in 1989/1990.
- He was convicted in Missouri in 1990 for rape and armed criminal action and released on August 26, 2008.
- No removal order was issued or reinstated after the 1990 conviction; Border Control did not notify of release.
- In 2009, he was found sleeping behind a restaurant in Lake Charles, Louisiana, and pleaded guilty to illegal reentry under 8 U.S.C. § 1326(a).
- The PSR recommended a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) based on the 1990 conviction as a crime of violence; district court overruled objecting and applied the enhancement, calculating 77–96 months and imposing 90 months.
- On appeal, Nevares-Bustamante challenges the Applicability of the enhancement due to lack of a removal order after the predicate conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 2L1.2(b)(1)(A)(ii) enhancement applies without a removal order after the predicate conviction. | Nevares-Bustamante: no removal order after 1990 conviction; enhancement not triggered. | Government: application note treats any pre-removal-conviction removal as sufficient to trigger unlawfully remained. | Enhancement does not apply without a removal order after the conviction. |
Key Cases Cited
- United States v. Sanchez-Mota, 319 F.3d 1 (1st Cir. 2002) (addressed 'unlawfully remained' in context of removal orders)
- United States v. Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010) (discussed application note's scope; notes ambiguity in case facts)
- United States v. Cisneros-Gutierrez, 517 F.3d 751 (5th Cir. 2008) (guidance on § 2L1.2 interpretation and application notes)
- Stinson v. United States, 508 U.S. 36 (Supreme Court 1993) (guidance on controlling weight of agency commentary in guidelines)