United States v. Reynaldo Brito-Acosta

Reynaldo Brito-Acosta (Brito) was convicted of unlawfully being in the United States after deportation, in violation of 8 U.S.C. § 1326 . He appeals the calculation of his sentence under U.S.S.G. § 2L1.2(b)(1) (Nov.1990). We affirm.

FACTS

On June 25, 1991, Brito pled guilty to being illegally in the United States on November 13, 1990 in violation of 8 U.S.C. § 1326 . On July 18, 1991, he was sentenced to eighteen months imprisonment and two years supervised release. His base offense level was enhanced by four levels under U.S.S.G. § 2L1.2(b)(1) because he was previously deported after sustaining a conviction for a felony, second degree assault. His deportation was based on a misdemeanor conviction for unlawfully possessing a firearm.

DISCUSSION

Brito claims that it is improper to increase the offense level when a person is not deported for the prior felony itself. We have had occasion to apply section 2L1.2(b)(1). See United States v. Olvera-Cervantes, 960 F.2d 101 (9th Cir.1992); United States v. Arias-Granados, 941 F.2d 996 (9th Cir.1991). However, we have not previously considered the argument Brito now makes. Upon considering the argument, we find it to be without…