United States v. Carlos Moreno-Cisneros

Opinion by Judge REAVLEY; Dissent by Judge WILLIAM A. FLETCHER.

The issue presented in this appeal is whether, under U.S.S.G. § 2L1.2(b)(l), as amended Nov. 1, 2001, the length of the “sentence imposed” for a prior state conviction includes the prison sentence the defendant received after his probation was revoked. We agree with the district court that it does and accordingly affirm.

In 2001 appellant Carlos Moreno-Cisne-ros was convicted after a guilty plea of illegal reentry under 8 U.S.C. § 1326 . He was subject to an enhanced sentence under 8 U.S.C. § 1326 (b)(2), which provides that the maximum sentence for illegal reentry increases from two to twenty years if the alien’s “removal was subsequent to a conviction for commission of an aggravated felony.” In 1988 Moreno-Cisneros had been convicted in California state court of possession for sale of a controlled substance, and he was subsequently deported. He does not dispute that his prior drug conviction was an aggravated felony, as 8 U.S.C. § 1101 (a)(43)(B) defines an aggravated felony to include a drug trafficking offense.

*458 Moreno-Cisneros does, however, dispute the district court’s application of Sentencing Guideline…

dissenting:

The majority concludes that a previously suspended three-year prison sentence imposed because of a probation violation counts under U.S.S.G. § 2L1.2(b)(l) as part of a “sentence imposed” because of a state drug conviction. I respectfully dissent.

As a result of a drug trafficking conviction in 1988, Moreno-Cisneros received a three-year period of probation, a three-year suspended sentence, and a credit for the 266 days he had already served in prison. The sentencing document in the state court provided in relevant part:

(Underlining added to indicate words inserted by the state court into blanks in the form; italics added for emphasis.) After the court entered the order, Moreno-Cisneros was released from custody. Moreno-Cisneros subsequently violated the conditions of his probation and, as a consequence of that violation, was sentenced to serve the previously suspended three-year sentence.

In 2001, Moreno-Cisneros was convicted under 8 U.S.C. §§ 1326 (a) and 1326(b)(2) of illegal reentry into the United States after having been previously convicted of an aggravated felony. The Sentencing Guideline for § 1326(b)(2) distinguishes among prior convictions for purposes…

319 F.3d 456 UNITED STATES of America, Plaintiff-Appellee, v. Carlos MORENO-CISNEROS, Defendant-Appellant. No. 01-30421. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 6, 2002. Filed January 31, 2003. Robert M. Stone, Medford, OR, for the appellant. Robert G. Thomson, Assistant United States Attorney, Medford, OR, for the appellee. Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CR-01-30045-HO. Before: REAVLEY, * KOZINSKI, and W. FLETCHER, Circuit Judges. Opinion by Judge REAVLEY; Dissent by Judge WILLIAM A. FLETCHER. REAVLEY, Circuit Judge. 1 The issue presented in this appeal is whether, under U.S.S.G. § 2L1.2(b)(1), as amended Nov. 1, 2001, the length of the "sentence imposed" for a prior state conviction includes the prison sentence the defendant received after his probation was revoked. We agree with the district court that it does and accordingly affirm. 2 In 2001 appellant Carlos Moreno-Cisneros was convicted after a guilty plea of illegal reentry under 8 U.S.C. § 1326 . He was subject to an enhanced sentence under 8 U.S.C. § 1326 (b)(2), which…