U.S. v. BERCIAN-FLORES, NO. 13-4504

Decided: May 14, 2015

The Fourth Circuit held that the statutory maximum term of imprisonment set by Congress, not the top sentence in the Sentencing Guidelines range, is determinative of whether a defendant committed a predicate felony under U.S.S.G. § 2L1.2(b)(1)(A)(vii), affirming the district court’s order to impose a twelve-level sentence enhancement for Bercian-Flores’s earlier conviction.

This appeal follows Bercian-Flores’s 2012 conviction for being found in the United States following his removal subsequent to his commission of a felony in violation of 8 U.S.C. §§ 1326(a) and (b)(1).  In 1997, Bercian-Flores had pled guilty to transporting an alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), which had a statutory maximum punishment of five years imprisonment.  However, the Guidelines range for his 1997 conviction under the Sentencing Guidelines, which were mandatory at the time, was zero to six months’ imprisonment.  Bercian-Flores pled guilty to the 2012 charge, and the probation office prepared a presentence report, enhancing Bercian-Flores’s sentence based on his commission of a prior felony.  Bercian-Flores argued that the Sentencing Guidelines should control, and that his 1997 charge should not be considered a felony for sentencing purposes.  However, the district court disagreed and held that the statutory maximum sentence, not the Guidelines range, controlled.  Thereafter, Bercian-Flores appealed.

On appeal, Bercian-Flores argued that the district court erred in imposing the sentence enhancement for a prior felony because his 1997 conviction was not punishable by a term of imprisonment exceeding one year.  Specifically, Bercian-Flores argued that the district court did not have the authority to sentence him to more than six months for the 1997 conviction because the Guidelines range, which was mandatory in 1997, allowed for zero to six month term of imprisonment.  The Fourth Circuit, however, determined that the district court could have imposed a sentence of up to 5 years because the statutory maximum sentence set by Congress, not the top sentence in the Guidelines range, is determinative of whether the prior conviction constitutes a predicate felony under U.S.S.G. § 2L1.2(b)(1)(A)(vii).

Full Opinion

Charles Buist

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