United States v. Rosales-Garcia
2012 U.S. App. LEXIS 2400
| 10th Cir. | 2012Background
- Rosales-Garcia pled guilty to illegal reentry under 8 U.S.C. § 1326 and was sentenced to 37 months’ imprisonment.
- Rosales had a prior state drug trafficking felony (convicted 2008) with a sentence of 90 days’ imprisonment and 3 years of probation.
- Rosales was deported and then illegally reentered, violating probation and § 1326; probation was later revoked in state court to a 1 to 15 year term.
- After serving the state sentence, Rosales was imprisoned in federal court; he pled guilty under a fast-track program.
- The PSR recommended a 16-level enhancement under § 2L1.2(b)(1)(A) based on the prior drug conviction and its sentence.
- The district court applied the 16-level enhancement; Rosales preserved the issue for appeal, arguing the enhancement was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2L1.2(b)(1)(A) applies when the prior sentence was imposed after deportation | Rosales contends the sentence must precede deportation to count. | Government argues the post-deportation sentence length can count under the 'sentence imposed' clause including revocation. | 16-level enhancement does not apply; remand for resentencing with 12-level enhancement. |
| Whether the 'sentence imposed' includes post-deportation revocation sentences | Rosales argues revocation sentences after deportation should not count. | Government urges inclusion of revocation sentences per commentary. | The court adopts a temporal constraint requiring the prior sentence to be before deportation; 'sentence imposed' includes pre-deportation sentence length, not post-deportation revocation alone. |
| Whether the error is harmless and warrants remand rather than affirming as is | Kept to argue improper application of guidelines affected sentencing. | Government bears burden to show harmless error; it did not argue harmless error here. | Remand for resentencing with the 12-level enhancement; error not harmless. |
Key Cases Cited
- United States v. Ruiz-Gea, 340 F.3d 1181 (10th Cir. 2003) (preserved issue; discussed timing of enhancement under § 2L1.2)
- United States v. Lopez, 634 F.3d 948 (7th Cir. 2011) (temporal reading of § 2L1.2(b)(1) discussed)
- United States v. Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010) (held disagreeing with applying 16-level enhancement in similar facts)
- United States v. Compres-Paulino, 393 F.3d 116 (2d Cir. 2004) (early interpretation of 2L1.2(b)(1) in similar context)
- United States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000) (temporal aspects of 2L1.2 discussed in aggravated felony context)
- United States v. Moreno-Cisneros, 319 F.3d 456 (9th Cir. 2003) (addressed 'sentence imposed' in relation to probation revocation)