United States v. Virginio Martinez
2017 U.S. App. LEXIS 17904
| 9th Cir. | 2017Background
- Hernandez Martinez, a Mexican national, pleaded guilty to illegal reentry (8 U.S.C. § 1326) and was sentenced in 2017 under the 2016 U.S.S.G. Manual.
- He had a 2003 California conviction for felony lewd acts with a child; state court initially imposed 365 days in jail plus five years’ probation.
- He was first deported in June 2004; his probation was later revoked and in 2006 California imposed a three-year incarceration sentence for that revoked probation (after his 2004 deportation).
- At federal sentencing for the later illegal reentry, the district court applied an 8-level enhancement under U.S.S.G. § 2L1.2(b)(2)(B) treating the California conviction as having a sentence of two years or more, producing a higher Guidelines range.
- Hernandez Martinez objected, arguing the qualifying two-year (or more) sentence had not been imposed before his first deportation; the Ninth Circuit accepted his argument and vacated and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2L1.2(b)(2)(B) requires the qualifying sentence to have been imposed before the defendant's first deportation | Hernandez Martinez: the two-year (or greater) sentence must have been imposed before the first deportation; post-deportation revocation sentences do not count | Government: the temporal language modifies only when the conviction was sustained; any term of imprisonment (including revocation after deportation) counts toward the sentence imposed | The Ninth Circuit held the qualifying sentence must have been imposed before the first deportation; the prior conviction did not qualify because the two-year term arose only after the first deportation |
Key Cases Cited
- Stinson v. United States, 508 U.S. 36 (1993) (Sentencing Commission commentary is authoritative unless inconsistent with statute or Constitution)
- Gall v. United States, 552 U.S. 38 (2007) (district courts must correctly calculate the Guidelines range before imposing sentence)
- Munoz-Camarena v. United States, 631 F.3d 1028 (9th Cir. 2011) (error in Guidelines calculation requires remand)
- United States v. Rosales-Garcia, 667 F.3d 1348 (10th Cir. 2012) (prior decision holding qualifying sentence must be imposed before deportation)
- United States v. Compres-Paulino, 393 F.3d 116 (2d Cir. 2004) (contrasting view that sentence may be counted regardless of when imposed)
- United States v. Franco-Galvan, 864 F.3d 338 (5th Cir. 2017) (interpreting 2016 amendments as preserving prior approach that requires sentence before deportation)