Alvarez-Hernandez

I. FACTS AND PROCEEDINGS BELOW

Appellant is a Mexican national. In 1991, Appellant received a five-year suspended sentence, three years proba- tion, and a fine, for the unlawful sale of a controlled substance in violation of Nevada Revised Statute § 453.321. Following that conviction, Appellant was deported. Appellant later returned to the United States and was deported again on May 20, 1999. Appellant again reentered the United States, and on November 16, 2005, he was indicted pursuant to 8 U.S.C. § 1326 for being an illegal alien found in the United States following deportation. Appellant pled guilty to that charge on February 9, 2006.

On April 21, 2006, the district court conducted a sentencing hearing at which Appellant and the United States agreed that, under the Sentencing Guidelines, Appellant’s base offense UNITED STATES v. ALVAREZ-HERNANDEZ 2263 level was eight and that he was entitled to a three-level down- ward departure for acceptance of responsibility. The parties disagreed, however, over whether Appellant’s fully suspended and probated sentence for unlawful sale of a controlled sub- stance constituted “a felony drug trafficking offense for which the…