Opinion
Case No. 00-40046-01-DES 01-3332-DES
August 22, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion brought pursuant to 28 U.S.C. § 2255 (Doc. 28) Defendant asserts his sentence was improperly calculated by the court. After review, the court finds that the record in this case conclusively shows defendant is entitled to no relief. The government will not, therefore, be required to respond. For the following reasons, defendant's motion is summarily denied.
I. BACKGROUND
On June 15, 2000, defendant pled guilty to one count of aggravated illegal re-entry into the United States in violation of 8 U.S.C. § 1326. According to the Sentencing Guidelines, a violation of 8 U.S.C. § 1326 carries a base offense level of 8. USSG § 2L1.2. However, the Sentencing Guidelines provide for a sixteen level increase in the offense level if the defendant was previously deported after a conviction for an aggravated felony. USSG § 2L1.2(b)(1) (A). Upon review of defendant's criminal history, the court applied the sixteen level increase. After an adjustment for defendant's acceptance and responsibility, defendant's total offense level was twenty-one.
On September 12, 2000, defendant was sentenced by this court to a twenty-four month term of imprisonment followed by two years supervised release.
The court notes that defendant received a downward departure from a guideline range of seventy to eighty-seven months, to a sentence of twenty-four months based on USSG § 5K2.0 (cultural assimilation), USSG § 5K2.ll (lesser harms), and USSG § 5H1.6 (family ties and responsibilities)
II. DISCUSSION
Defendant asserts the court should not have applied the sixteen level increase, for he claims the charge precipitating his deportation was not an aggravated felony. To understand this issue requires a brief explanation of defendant's criminal history. On August 27, 1993, defendant was charged in Scottsbluff County, Nebraska, for possession of marijuana with intent to distribute. Defendant was a citizen of Mexico living in the United States. On November 2, 1993, pursuant to a jury trial, defendant was found guilty as charged. On December 30, 1993, defendant was sentenced to eighteen to twenty-two months imprisonment. Defendant was released on parole on June 28, 1994.
On July 23, 1995, defendant was arrested for assault in Gering, Nebraska. He was eventually convicted and sentenced to a minimal term of custody. On October 26, 1995, defendant was released to INS for deportation purposes. Defendant filed an appeal regarding his deportation, but, on October 6, 1999, defendant was in fact deported from the United States at El Paso, Texas.
Defendant asserts his 1995 assault offense was in reality reduced to a simple disturbing the peace charge. He continues by arguing that because this conviction is not an aggravated felony as defined by the Sentencing Guidelines, the court improperly applied the § 2L1.2 level increase. Unfortunately, defendant's argument is premised on a faulty interpretation of the Sentencing Guidelines. In applying the increase, the court's consideration is not limited to the conviction directly preceding a defendant's deportation. In fact, the Sentencing Guidelines makes this point clear:
"Deported after a conviction," means that the deportation was subsequent to the conviction, whether or not the deportation was in response to such conviction. . . .
. . . .
"Aggravated felony," is defined at 8 U.S.C. § 1101 (a) (43) without regard to the date of conviction of the aggravated felony.
USSG § 2L1.2, comment. n. 1.
Because defendant's 1993 possession with intent to distribute conviction is an "aggravated felony" as defined by 8 U.S.C. § 1101 (a) (43) and defendant was deported subsequent to this conviction, the court properly applied the sixteen level increase. Finding defendant's argument lacking in merit, the court shall deny defendant's motion.
IT IS THEREFORE BY THIS COURT ORDERED that defendant's Motion brought pursuant to 28 U.S.C. § 2255 (Doc. 28) is denied.