United States v. Justo Hernandez-Valdovinos

Justo Hernandez-Valdovinos (“Hernandez”) appeals the judgment of the district court sentencing him to 30 months’ imprisonment following his guilty plea to reentry after deportation, in violation of 8 U.S.C. § 1326 (a). Hernandez contends that the district court erred in classifying his prior felony offense as an aggravated felony and in applying a 12-level sentencing enhancement when he only received probation for the prior felony. We have jurisdiction pursuant to 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291 , and we affirm.

BACKGROUND

In June 2002, Hernandez was found in Arizona, arrested, and charged with reentry after deportation, in violation of 8 U.S.C. § 1326 . He pled guilty, but objected to the pre-sentence report (“PSR”), which recommended a 12-level sentencing enhancement pursuant to United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(l)(B) because of a prior drug-trafficking conviction with a sentence of less than 13 months. Hernandez’s prior conviction was in Arizona state court for attempted sale of narcotic drugs. The state court ordered that the sentence be suspended and placed Hernandez on four years’ probation; however, the court also ordered…