United States v. Marco Antonio Olvera-Cervantes

Section 2L1.2 of the Sentencing Guidelines requires that aliens convicted of illegally reentering the United States receive a heavier sentence if they had been originally deported after being convicted of a felony. Under federal law, all offenses that carry a maximum penalty in excess of one year are felonies. In this ease, we are asked to decide whether, in considering pri- or state convictions, section 2L1.2 defines a felony by reference to the maximum penalty authorized for the offense by the state statute or by reference to the maximum penalty authorized for the offense by the analogous federal statute. We hold that section 2L1.2 defines a felony by reference to the maximum penalty authorized for the offense by the state statute of conviction.

I

In 1989, defendant Olvera-Cervantes, an undocumented alien, was convicted of possession of cocaine under Revised Code Washington (R.C.W.) § 69.50.401(d), which carries a maximum penalty of five years. Olvera-Cervantes was sentenced to thirty days in jail. He was deported in early 1990 after serving his sentence.

Subsequently, Olvera-Cervantes returned to the United States illegally. After he was apprehended, he was charged with…