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Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:12cr00208FDW1)
Argued:
Decided:
United
district
Jose
States
court
Bercian-Flores
as
an
imposed
Bercian-Floress
1997
illegal
a
pled
alien.
twelve-level
felonious
guilty
At
to
re-entering
sentencing,
enhancement
conviction
for
based
the
on
unlawfully
U.S.S.G. 2L1.2
cmt. n.2.
On appeal, Bercian-Flores argues that this Courts ruling
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc), precludes the enhancement because the Guidelines range
for
his
1997
conviction
under
the
then-mandatory
Sentencing
Because the
I.
In 1997, Bercian-Flores pled guilty to transportation of an
alien in violation of 8 U.S.C. 1324(a)(1)(A)(ii) in the United
States District Court for the Southern District of Texas.
offense
carried
imprisonment.
a
See
statutory
8
U.S.C.
2
five-year
maximum
term
1324(a)(1)(A)(ii)
The
of
and
(a)(1)(B)(ii).
However,
the
Guidelines
range
for
Bercian-
Bercian-
decade
later,
in
May
2012,
Bercian-Flores
was
found
subsequent
to
in
the
the
United
commission
States
of
following
felony
in
his
removal
violation
of
enhancement
2L1.2(b)(1)(A)(vii)
pursuant
(Unlawfully
to
Entering
or
U.S.S.G.
Remaining
in
the
Bercian-Flores
raised
objections
to
the
PSR,
conviction
U.S.S.G.
did
not
2L1.2(b)(1)
constitute
because
he
felony
could
not
for
purposes
have
received
of
a
in
effect
in
1997.
The
district
court
denied
The
district
court
therefore
held
that
Bercian-Floress
to
his
Guidelines
imprisonment, controlled.
range,
zero
to
six
months
of
with
an
Guidelines
district
offense
range
court
imprisonment.
of
level
of
seventeen
twenty-seven
sentenced
to
and
thirty-three
Bercian-Flores
to
recommended
months,
thirty
the
months
Bercian-Flores appealed.
II.
The
U.S.
Sentencing
Guidelines
prescribe
twelve-level
define
punishable
felony
by
U.S.S.G. 2L1.2(b)(1)(A)(vii).
as
any
imprisonment
federal,
for
state,
term
Guidelines de novo.
interpretation
of
the
local
exceeding
or
The
U.S.
one
We review a
Sentencing
III.
Bercian-Flores
imposing
the
argues
twelve-level
2L1.2(b)(1)(A)(vii)
punishable
by
Specifically,
that
because
term
of
the
district
enhancement
his
1997
imprisonment
Bercian-Flores
contends
court
under
erred
in
U.S.S.G.
conviction
exceeding
that
the
was
not
one
year.
district
court
did not have authority to sentence him to more than six months
because the Guidelines range for his 1997 conviction was zero to
six months, and in 1997 the Guidelines were mandatory.
United States v. Booker, 543 U.S. 220, 233 (2005).
See
Bercian-
felony
for
purposes
of
U.S.S.G.
Bercian-Flores
was
2L1.2(b)(1)(A)(vii).
A.
Under
sentenced
the
sentencing
in
1997,
mandatory.
the
regime
U.S.
in
which
Sentencing
Guidelines
were
district
courts
to
depart
upward
from
the
applicable
guideline
circumstance
not
if
adequately
the
judge
taken
found
into
an
aggravating
consideration
by
the
Guideline
and
that
the
[p]resence
of
any
such
factor
may
the
sentencing
court.
Id.
Additionally,
findings
2005)
that,
both
before
and
after
Booker,
of
the
evidence)
(citing
McReynolds
v.
United
North
Carolina
Structured
Sentencing
Act,
Under
sentences
were
those
factors
was
established
by
Id. at 240.
statute.
Once
Each
judge
possible
sentencing
presumptive
range,
presumptive
range
and
an
governed
rangesa
aggravated
unless
the
mitigated
range,
range.
Id.
judge
made
a
The
written
select
from
the
aggravated
range
only
if
the
State
has
those factors.
range,
the
Id.
Structured
Sentencing
Act
required
Id.
the
judge
to
extraordinary
discretion
to
mitigating
impose
extraordinary cases.
factors,
more
the
severe
judge
had
sentence
no
even
in
felony.
U.S.C.
1229b(a)(3).
Aggravated
Carachuri,
Carachuri
560
had
U.S.
at
received
567
(quoting
twentyday
18
U.S.C.
sentence
for
contended
that
his
offense
was
Therefore, the
punishable
by
Supreme
on
the
Court
unanimously
INAs
use
of
the
rejected
phrase
this
argument.
convicted
of
a[n]
underlying
hypothetically
irrelevant.
for
was
could
defendants
have
received
whether
simply
the
determining
felony
Id. at 576.
whether
felony
conviction
treatment
was
defendant
he
prior
was
committed
actually
an
aggravated
convicted
of
an
Carolina
conviction
was
punishable
by
imprisonment
C.
Bercian-Flores
likens
the
pre-Booker
U.S.
Sentencing
imprisonment
exceeding
one
year
because
the
top
of
his
In
While
sentencing
judges
had
discretion
to
depart
10
Id.
Bercian-Flores
Simmons opinion
indicating
that
aggravating
factors
was
defendants
maximum
sentence
Act.
also
not
points
to
language
consideration
appropriate
under
the
when
of
in
the
hypothetical
determining
Structured
Sentencing
hypothetical
maximum sentence.
aggravating
factors
when
assessing
his
Id. at 244.
the
manner
that
Bercian-Flores
requests,
we
would
be
In Rodriquez, the
Supreme
states
Court
considered
whether
11
Washington
mandatory
that
it
would
not
qualify
as
predicate
felony
for
Id. at
at
390.
The
Supreme
Court
directly
referenced
U.S.
Career
Criminals
Act]
provision
at
issue
in
this
(citing
2006)).
State
v.
Norris,
630
S.E.2d
915,
91718
(N.C.
Simmons, 649
F.3d
at
244
(quoting
Rodriquez,
553
U.S.
at
390).
The
Id.
approach
that
Bercian-Flores
asks
us
to
adopt.
As
the
Bercian-Flores
is
North
mandatory
Structured
more,
Bercian-Flores
Carolinas
pre-Booker
Sentencing
ignores
Structured
federal
Act,
Sentencing
sentencing
an
crucial
regime.
offender
can
differences
Act
and
the
Under
the
receive
an
By contrast, the
did
not
require
reasonable doubt.
Thus,
even
that
jury
find
such
factors
beyond
the
pre-Booker
Guidelines,
federal
Rather,
regardless
of
by
the
defendant,
under
Guidelines,
the
facts
found
the
by
the
pre-Booker
jury
or
Sentencing
pled
to
or
her
applicable
range
up
to
the
statutory
maximum
in
appropriate circumstances.
Our recent decisions in United States v. Kerr, 737 F.3d 33
(4th Cir. 2013), and United States v. Valdovinos, 760 F.3d 322
(4th
Cir.
statutory
2014),
maximum
further
sentence
support
set
by
the
conclusion
Congress,
and
that
the
the
top
not
convictions
sentencing
under
did
the
not
qualify
Armed
Career
as
predicate
Criminal
Act,
felonies
for
because
the
Act.
737
F.3d
at
34.
The
defendants
maximum
qualified
sentencing
judge
as
predicate
determined
that
felony.
Even
mitigating
though
factors
in
the
the
Id. at 38-39.
trafficking
conviction
qualified
as
predicate
felony
We explained that
15
after
sentence
Simmons
is
particular
whether
the
defendant
to
sentence
term
judge
of
Guidelines,
Bercian-Flores
the
up
the
The same
district
to
could
imprisonment
sentencing
court
had
statutory
discretion
maximum
to
of
five
that
our
years.
D.
At
bottom,
Bercian-Flores
fails
to
appreciate
holding in Simmons did not change the fact that the cornerstone
of our predicate-felony analysis must be the defendants offense
of conviction.
560
U.S.
at
576
&
582).
[T]he
qualification
of
prior
Valdovinos,
760 F.3d at 327 (quoting United States v. Edmonds, 679 F.3d 169,
176 (4th Cir. 2012), vacated on other grounds, 133 S. Ct. 376,
affd on remand, 700 F.3d 146 (4th Cir. 2012)).
The
U.S.
Sentencing
Guidelineswhether
mandatory
or
transporting
aliens
16
in
violation
of
U.S.C.
1324(a)(1)(B)(ii)
(1994).
Congress
set
the
maximum
term
of
IV.
For
the
foregoing
reasons,
we
hold
that
the
statutory
felony
under
U.S.S.G.
2L1.2(b)(1)(A)(vii).
Therefore the district court did not err in overruling BercianFloress objection and imposing a twelve-level enhancement for
Bercian-Floress 1997 alien-smuggling conviction.
AFFIRMED
17