USA v. ALVAREZ-HERNANDEZ
The Ninth Circuit Court of Appeals today released an opinion in USA v. ALVAREZ-HERNANDEZ, No. 06-10284, a criminal appeal. The panel consisted of Andrew J. Kleinfeld and Jay S. Bybee, Circuit Judges, and Robert H. Whaley, District Judge.
BYBEE, Circuit Judge:
Defendant-Appellant Vicente Alvarez-Hernandez (”Appellant”) appeals his sentence for being an illegal alien found in the United States following deportation. Appellant argues that the district court’s determination that he had previously been “convicted for a felony drug trafficking offense for which the sentence imposed was 13 months or less,” U.S.S.G. § 2L1.2(b)(1)(B), was erroneous due to a 2003 amendment to the Sentencing Guidelines’ authoritative commentary. That amendment’s effect is a question of first impression in this circuit. For the reasons set forth below, we hold that the district court erred in applying § 2L1.2(b)(1)(B) to Appellant. I. FACTS AND PROCEEDINGS BELOW Appellant is a Mexican national. In 1991, Appellant received a five-year suspended sentence, three years probation, and a fine, for the unlawful sale of a controlled substance in violation of Nevada Revised Statute § 453.321. Following that conviction, Appellant was deported. Appellant later returned to the United States and was deported again on May 20, 1999. Appellant again reentered the United States, and on November 16, 2005, he was indicted pursuant to 8 U.S.C. § 1326 for being an illegal alien found in the United States following deportation. Appellant pled guilty to that charge on February 9, 2006. On April 21, 2006, the district court conducted a sentencing hearing at which Appellant and the United States agreed that, under the Sentencing Guidelines, Appellant’s base offense . . .