AMENDMENT 809
Amendment: Section 2L1.2(b)(2) is amended by striking “If, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained—” and inserting “If, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant engaged in criminal conduct that, at any time, resulted in—”.
Section 2L1.2(b)(3) is amended by striking “If, at any time after the defendant was ordered deported or ordered removed from the United States for the first time, the defendant engaged in criminal conduct resulting in—” and inserting “If, after the defendant was ordered deported or ordered removed from the United States for the first time, the defendant engaged in criminal conduct that, at any time, resulted in—”.
The Commentary to §2L1.2 captioned “Application Notes” is amended—
in Note 2 in the paragraph that begins “‘Sentence imposed’ has the meaning” by striking “includes any term of imprisonment given upon revocation of probation, parole, or supervised release” and inserting “includes any term of imprisonment given upon revocation of probation, parole, or supervised release, regardless of when the revocation occurred”;
in Note 4 by striking “subsection (b)(3),” and inserting “subsection (b)(2) or (b)(3), as appropriate,”;
and by redesignating Notes 5 through 7 as Notes 6 through 8, respectively; and by inserting the following new Note 5:
“5. Cases in Which the Criminal Conduct Underlying a Prior Conviction Occurred Both Before and After the Defendant Was First Ordered Deported or Ordered Removed.—There may be cases in which the criminal conduct underlying a prior conviction occurred both before and after the defendant was ordered deported or ordered removed from the United States for the first time. For purposes of subsections (b)(2) and (b)(3), count such a conviction only under subsection (b)(2).”
Reason for Amendment: This amendment responds to two application issues that arose after §2L1.2 (Unlawfully Entering or Remaining in the United States) was extensively amended in 2016. See USSG App. C, Amendment 802 (effective Nov. 1, 2016).
The specific offense characteristic at §2L1.2(b)(2) applies a sliding scale of enhancements, based on sentence length, if the “defendant sustained” a “conviction” before being ordered removed for the first time. Correspondingly, §2L1.2(b)(3) applies a parallel scale of enhancements if the defendant “engaged in criminal conduct resulting in” a conviction “at any time after” the first order of removal. In most situations, any prior felony conviction that received criminal history points will qualify under either subsection (b)(2) or (b)(3), with the extent of the increase depending on the length of the sentence imposed. In some scenarios, a felony will not qualify for an upward adjustment under either subsection (b)(2) or (b)(3) even though it received criminal history points. Those scenarios occur when a defendant committed a crime before being ordered removed for the first time but was not convicted (or sentenced) for that crime until after that first order of removal.
The amendment addresses this issue by establishing that the application of the §2L1.2(b)(2) enhancement depends on the timing of the underlying “criminal conduct,” and not on the timing of the resulting conviction. It does so by amending the first paragraph of subsection (b)(2) to state that the enhancement applies if pre-first removal conduct resulted in a conviction “at any time,” and makes a conforming change to the first paragraph of subsection (b)(3). In order to address how to treat an offense involving conduct that occurred both before and after a defendant’s first order of removal, the amendment adds a new Application Note 5 explaining that an offense involving such conduct should be counted only under subsection (b)(2). The Commission determined that a defendant with a prior non-illegal reentry felony conviction that received criminal history points should receive an enhancement for that conviction under either subsection (b)(2) or (b)(3). A defendant should not avoid an enhancement for an otherwise qualifying conviction because the conviction occurred after a defendant’s first order of removal or deportation but was premised on conduct that occurred before that order. Because a conviction could be premised on conduct that occurred both before and after the first order of removal or deportation, the Commission adopted Application Note 5 to explain that such convictions are only counted once, under subsection (b)(2).
The specific offense characteristics at §2L1.2(b)(2) and (b)(3) increase a defendant’s offense level based on the length of the “sentence imposed” for a prior felony conviction. An application note defines “sentence imposed” to mean “sentence of imprisonment” as that term is used in the criminal history guideline, §4A1.2. See USSG §2L1.2, comment. (n.2.). Consistent with that definition, the application note also directs that “[t]he length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release.” Id.
Another part of the commentary to §2L1.2 directs that only convictions receiving criminal history points under “§4A1.1(a), (b), or (c)” (which assign points based on the length of the prior sentence imposed) are to be counted under §2L1.2(b). See USSG §2L1.2, comment. (n.3). In determining the length of a sentence for purposes of Chapter Four (and thus the number of criminal history points to be applied), the length of any term imposed on revocation of probation, parole, supervised release, or other similar status is added to the original term of imprisonment and the total term is used to calculate criminal history points under §4A1.1(a), (b), or (c). See USSG §4A1.2(k)(1).
A Fifth Circuit opinion interpreted §2L1.2(b)(2) to bar consideration of a revocation that did not occur until after a defendant’s first order of removal, even if the defendant was convicted prior to the first order of the removal. See United States v. Franco-Galvan, 864 F.3d 338 (5th Cir. 2017). The court found that Application Note 2, despite its instruction that “the length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release,” was insufficiently clear to resolve the “temporal” question of when a revocation must occur, given that the Commission had resolved a prior circuit conflict in 2012 by directing that revoked time should not be counted in the situation. See USSC App. C, Amendment 764 (effective Nov. 1, 2012). A subsequent decision of the Ninth Circuit reached the same result. See United States v. Martinez, 870 F.3d 1163 (9th Cir. 2017). Although both cases involved an enhancement under subsection (b)(2), the same logic would seem to apply to enhancements under subsection (b)(3) when the conviction and revocation were separated by an intervening order of removal or deportation.
The amendment resolves this issue by adding the clarifying phrase “regardless of when the revocation occurred” to the definition of “sentence imposed” in Application Note 2. The Commission determined that, consistent with the purposes of the 2016 amendment to §2L1.2, the data underlying it, and the statement in Application Note 2, the length of a sentence imposed for purposes of §2L1.2(b)(2) and (b)(3) should include any additional term of imprisonment imposed upon revocation of probation, suspended sentence, or supervised release, regardless of whether the revocation occurred before or after the defendant’s first (or any subsequent) order of removal. As the reason for amendment for Amendment 802 explained, “[t]he Commission determined that a sentence-imposed approach is consistent with the Chapter Four criminal history rules, easily applied, and appropriately calibrated to account for the seriousness of prior offenses.” USSC, App. C, Amendment 802 (effective Nov. 1, 2016). Excluding sentence length added by post-removal revocations would be inconsistent with the purpose of Amendment 802 and its underlying data analysis. Id.
Effective Date: The effective date of this amendment is November 1, 2018.