United States v. Oscar Ullyses-Salazar

Opinion by Chief Judge WALLACE.

Ullyses-Salazar challenges his sentence of 70 months’ imprisonment following his guilty plea to being present in the United States after a prior deportation, in violation of 8 U.S.C. § 1826 (a), (b)(1), and (b)(2). The district court had jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction over this timely appeal of the sentence under 18 U.S.C. § 3742 . We affirm.

I

Ullyses-Salazar was deported from the United States in 1989 and 1991. He had been convicted in state court of armed robbery in 1983, of unlawfully taking or driving a vehicle in 1988, and of being a felon in possession of a firearm in 1990. In 1992, he was discovered in the United States, and subsequently pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326 (a), (b)(1), and (b)(2).

Concluding Ullyses-Salazar’s armed robbery conviction was an “aggravated felony” as defined by the Immigration and Nationality Act (Act), 8 U.S.C. § 1101 (a)(43), the district court sentenced him under 8 U.S.C. § 1326 (b)(2) which provides for a maximum 15 year sentence. An illegally returning alien that has not previously committed an aggravated felony, in contrast, is only…