Sunday, September 24, 2017

Case o' The Week: Ninth Not Keen on Gray Primer - Hernandez Martinez and the New(ish) Illegal Reentry Guideline

 The Ninth finds a little light, amongst the gray.
United States v. Hernandez Martinez, 2017 WL 4080481 (9th Cir. Sept. 15, 2017), decision available here.

Players: Decision by Judge Ikuta, joined by Judges W. Fletcher and DJ Barker. Nice win for Deputy Federal P.D. James Locklin, Central District of California.

Facts: After pleading guilty to illegal reentry in violation of 8 USC § 1326, Hernandez Martinez received the +8 OL bump at sentencing for having had a “two year or more” felony sentence before he was removed the first time. Id. at *1 (citing USSG § 2L1.2(b)(2)(B) (Nov. 1, 2016), see Guideline here
  Actually, he had been convicted a felony and received a 365 day sentence with probation to follow, before removal. Id. After that California conviction, he was deported, reentered, his probation was revoked, and he was then was sentenced to three years. Id.

  In other words:

  Cali felony conviction w/ 365 day sentence => 
  Removal => 
  Reentry => 
  Revocation of Cali probation, and three year sentence.
At the federal, § 1326 sentencing, Hernandez objected to the eight offense level guideline increase, because his original Cali felony sentence was under two years before he was first deported. Id. at *2.
  The district court rejected Martinez’s objection and imposed the guideline increase. Id.

Issue(s): “Hernandez Martinez argues that the district court erred in applying this enhancement. Although Hernandez Martinez sustained a felony conviction before he was first ordered deported, he was sentenced to only one year of incarceration before his first deportation order; the sentence was increased to three years of incarceration after he returned to the United States.” Id. at *1.
  “The question presented here is whether the phrase ‘sentence imposed’ includes terms of imprisonment that were imposed after the defendant’s first deportation order when assessing the defendant’s eligibility for the § 2L1.2(b)(2)(B) enhancement.” Id. at *3.

Held:We conclude that Hernandez Martinez’s conviction did not qualify for the eight-level enhancement under § 2L1.2(b)(2)(B), and we therefore vacate the sentence and remand for sentencing.” Id. at *1.
  “We conclude that when viewed in its historical context, the amended § 2L1.2(b)(2)(B) is best read as carrying forward the Commission’s prior, unambiguous conclusions that a qualifying sentence must be imposed before the defendant’s first deportation or removal.” Id. at *6.

Of Note: The Ninth got it right. The Fifth got it right. See id. at *5. So who got this new guideline wrong? The Office of General Counsel, for the Sentencing Commission. In its 2016 Primer on Immigration Guidelines, the Primer opined that revocation sentences after removal “counted” towards the "sentence" requirement for the offense level bump. See id. at *6, n.2; see also Immigration Primer here, at 24-25.
  “Meh,” sniffs the Ninth: “The Primer expressly disavows the authority to represent the official position of the Commission . . . and its unreasoned interpretation lacks persuasive power.” Id. (internal quotations and citation omitted).
  A handy footnote, when the proclamations of Commission staff run contrary to your argument.

How to Use: Interpreting the guidelines just required old-fashioned, “ordinary statutory interpretation.” Id. at *2. Hernandez-Martinez adds an arrow to that analytical quiver. In essence, Judge Ikuta explains that if the Commission intends a change to the status quo, it must plainly explain that is what it wants. Id. at *5. Language disappearing in an amended guideline, alone, isn’t enough. Id.
  An interesting concept to mull, as Johnson warriors explore the boundaries of the new(ish) Career Offender definitions. See USSG § 4B1.2, Nov. 1, 2016 (available here).  
For Further Reading: Whither the Sentencing Commission?
  In August 2017, Attorney General Sessions urged the White House to nominate Eastern District of Virginia District Judge Henry “Hang ‘Em High” Hudson as a Sentencing Commissioner. See article here. 
  (That whole guideline “status quo” thing is sounding pretty good . . . )

Image of “Hang ‘Em High” Movie poster from

Steven Kalar, Federal Public Defender Northern District of California. Website at


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