AMENDMENT 764
Amendment: The Commentary to §2L1.2 captioned “Application Notes” is amended in Note 1(B)(vii) by inserting before the period at the end the following: “, but only if the revocation occurred before the defendant was deported or unlawfully remained in the United States”.
Reason for Amendment:This amendment responds to a circuit conflict over the application of the enhancements found at §2L1.2(b)(1)(A) and (B) to a defendant who was sentenced on two or more occasions for the same drug trafficking conviction (e.g., because of a revocation of probation, parole, or supervised release), such that there was a sentence imposed before the defendant’s deportation, then an additional sentence imposed after the deportation. The amendment resolves the conflict by amending the definition of “sentence imposed” in Application Note 1(B)(vii) to §2L1.2 (Unlawfully Entering or Remaining in the United States) to state that the length of the sentence imposed includes terms of imprisonment given upon revocation of probation, parole, or supervised release, but “only if the revocation occurred before the defendant was deported or unlawfully remained in the United States.”
Section 2L1.2(b)(1) generally reflects the Commission’s determination that both the seriousness and the timing of the prior offense for which the defendant was deported are relevant to assessing the defendant’s culpability for the illegal reentry offense. A defendant who was deported after a conviction for a felony drug trafficking offense receives an enhancement under either prong (A) or (B) of subsection (b)(1), depending on the length of the sentence imposed. If the sentence imposed was more than 13 months, the defendant receives a 16-level enhancement to the base offense level under prong (A). If the sentence imposed was 13 months or less, the defendant receives a 12-level enhancement under prong (B). However, for defendants whose prior convictions are remote in time and thus do not receive criminal history points, these enhancements are reduced to 12 levels and 8 levels, respectively.
The majority of circuits that have considered the meaning of “sentence imposed” in this context have held that the later, additional sentence imposed after deportation does not lengthen the sentence imposed for purposes of the subsection (b)(1) enhancement. See United States v. Bustillos‑Pena, 612 F.3d 863 (5th Cir. 2010); United States v. Lopez, 634 F.3d 948 (7th Cir. 2011); United States v. Rosales‑Garcia, 667 F.3d 1348 (10th Cir. 2012); United States v. Guzman‑Bera, 216 F.3d 1019 (11th Cir. 2000). Under the majority approach, if the sentence imposed was 13 months or less before the defendant was deported, and was only increased to more than 13 months after the deportation, the defendant is not subject to the enhancement in prong (A) because the “sentence imposed” includes only the sentence imposed before the deportation. Under this approach, such a defendant receives the enhancement in prong (B) instead.
The Second Circuit has reached the contrary conclusion, holding that defendants who had their sentences increased to more than 13 months upon revocation after deportation are subject to the enhancement in prong (A) because the “sentence imposed” includes the additional revocation sentence imposed after deportation. See United States v. Compres‑Paulino, 393 F.3d 116 (2d Cir. 2004).
The amendment adopts the approach taken by the majority of circuits, with the result that the term of imprisonment imposed upon revocation counts toward the calculation of the offense level in §2L1.2 only if it was imposed before the defendant was deported or unlawfully remained in the United States. According to public comment and testimony received by the Commission, and as courts have observed, the circumstances under which persons are found present in this country and have their probation, parole, or supervised release revoked for a prior offense vary widely. See Bustillos‑Pena, 612 F.3d at 867–68 (describing differences among revocation proceedings). In some jurisdictions, the revocation is typically based on the offender’s illegal return, while in others, the revocation is typically based on the offender’s committing an additional crime. Furthermore, in some cases revocation proceedings commonly occur before the offender is sentenced on the illegal reentry offense, while in other cases the revocation occurs after the federal sentencing. See Rosales‑Garcia, 667 F.3d at 1354 (observing that considering post‑deportation revocation sentences could result in disparities based on the “happenstance” of whether that revocation occurred before or after the prosecution for the illegal reentry offense). Therefore, assessing the seriousness of the prior crime based on the sentence imposed before deportation should result in more consistent application of the enhancements in §2L1.2(b)(1)(A) and (B) and promote uniformity in sentencing.
Effective Date: The effective date of this amendment is November 1, 2012.