United States v. Francisco Javier Soberanes, AKA Rolando Meza

In this prosecution for unlawful reentry by a deported alien, we must decide whether a prior conviction for attempted possession of more than eight pounds of marijuana is an “aggravated felony” within the meaning of U.S.S.G. § 2L1.2(b)(l)(C), after its amendment on November 1, 2001. We answer that question “yes” and, accordingly, affirm the district court’s use of the eight-level sentencing enhancement.

FACTUAL AND PROCEDURAL HISTORY

In 1994, Defendant Francisco Javier So-beranes, a citizen of Mexico, was convicted of attempted possession of more than eight pounds of marijuana, a Class 5 felony under Arizona law. Ariz.Rev.Stat. §§ 13-3405(B)(3), 13-1001(C)(4). After serving his sentence for that offense, he was deported.

Thereafter, Defendant returned to the United States illegally. In 2002, a federal grand jury indicted him for unlawful reentry by a deported alien, in violation of 8 U.S.C. § 1326 (a). He pleaded guilty.

The presentence report characterized Defendant’s prior conviction as an “aggravated felony.” Defendant objected. The district court overruled the objection and, pursuant to U.S.S.G. § 2L1.2(b)(l)(C), enhanced Defendant’s sentence by eight levels. Defendant was…