United States v. Jose Bercian-Flores

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4504

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSE GEOVANI BERCIAN-FLORES, a/k/a Jose Jeovany Bercian-

Flores, a/k/a Jose Geovani Flores-Mendosa, a/k/a Napolean

Villalta,

Defendant – Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Frank D. Whitney,

Chief District Judge. (3:12−cr−00208−FDW−1)

Argued: January 29, 2015 Decided: May 14, 2015

Before DUNCAN, WYNN, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in

which Judge Duncan and Judge Thacker joined.

ARGUED: Richard Lamb Brown, Jr., LAW OFFICES OF RICHARD L.

BROWN, JR., Monroe, North Carolina, for Appellant. Amy

Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,

North Carolina, for Appellee. ON BRIEF: Anne M. Tompkins,

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Charlotte, North Carolina, for Appellee.

WYNN, Circuit Judge:

Defendant Jose Bercian-Flores pled guilty to re-entering

the United States as an illegal alien. At sentencing, the

district court imposed a twelve-level enhancement based on

Bercian-Flores’s 1997 felonious conviction for unlawfully

transporting aliens, which the district court determined was an

“offense punishable by imprisonment for a term exceeding one

year” under the U.S. Sentencing Guidelines. U.S.S.G. § 2L1.2

cmt. n.2.

On appeal, Bercian-Flores argues that this Court’s ruling

in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en

banc), precludes the enhancement because the Guidelines range

for his 1997 conviction under the then-mandatory Sentencing

Guidelines was zero to six months’ imprisonment. Because the

judge who sentenced Bercian-Flores in 1997 had discretion to

sentence him for up to five years, we conclude that the district

court did not err in imposing the enhancement.

I.

In 1997, Bercian-Flores pled guilty to transportation of an

alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) in the United

States District Court for the Southern District of Texas. The

offense carried a statutory five-year maximum term of

imprisonment. See 8 U.S.C. §§ 1324(a)(1)(A)(ii) and

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(a)(1)(B)(ii). However, the Guidelines range for Bercian-

Flores’s 1997 conviction was calculated as zero to six months,

and he was sentenced to only 107 days’ imprisonment. Bercian-

Flores was removed to El Salvador on August 27, 1997.

Over a decade later, in May 2012, Bercian-Flores was

arrested in Mecklenburg County, North Carolina and charged with

being found in the United States following his removal

subsequent to the commission of a felony in violation of 8

U.S.C. §§ 1326(a) and (b)(1). He pled guilty to the charge

without entering into a plea agreement.

The probation office prepared a Presentence Report (“PSR”),

which calculated a base offense level of eight and recommended a

twelve-level enhancement pursuant to U.S.S.G. §

2L1.2(b)(1)(A)(vii) (“Unlawfully Entering or Remaining in the

United States”) based on Bercian-Flores’s 1997 alien-smuggling

conviction. Bercian-Flores raised objections to the PSR,

arguing that based upon this Court’s decision in Simmons, his

1997 conviction did not constitute a felony for purposes of

U.S.S.G. § 2L1.2(b)(1) because he could not have received a

sentence of more than one year under the mandatory Sentencing

Guidelines in effect in 1997. The district court denied

Bercian-Flores’s objection, reasoning that Simmons had expressly

distinguished North Carolina’s legislatively mandated sentencing

regime from a guidelines system.

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The district court therefore held that Bercian-Flores’s

statutory maximum sentence, a five-year term of imprisonment, as

opposed to his Guidelines range, zero to six months of

imprisonment, controlled. After crediting Bercian-Flores with a

three-level reduction for acceptance of responsibility, leaving

him with an offense level of seventeen and a recommended

Guidelines range of twenty-seven to thirty-three months, the

district court sentenced Bercian-Flores to thirty months’

imprisonment. Bercian-Flores appealed.

II.

The U.S. Sentencing Guidelines prescribe a twelve-level

enhancement for defendants who unlawfully re-enter the United

States “after . . . a conviction for a felony that is . . . an

alien smuggling offense.” U.S.S.G. § 2L1.2(b)(1)(A)(vii). The

Guidelines define “felony” as “any federal, state, or local

offense punishable by imprisonment for a term exceeding one

year.” U.S.S.G. § 2L1.2 cmt. n.2 (emphasis added). We review a

district court’s interpretation of the U.S. Sentencing

Guidelines de novo. United States v. McManus, 734 F.3d 315, 318

(4th Cir. 2013).

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III.

Bercian-Flores argues that the district court erred in

imposing the twelve-level enhancement under U.S.S.G. §

2L1.2(b)(1)(A)(vii) because his 1997 conviction was not

punishable by a term of imprisonment exceeding one year.

Specifically, Bercian-Flores contends that the district court

did not have authority to sentence him to more than six months

because the Guidelines range for his 1997 conviction was zero to

six months, and in 1997 the Guidelines were mandatory. See

United States v. Booker, 543 U.S. 220, 233 (2005). Bercian-

Flores analogizes the pre-Booker Sentencing Guidelines to the

North Carolina Structured Sentencing Act at issue in Simmons.

He argues that the top sentence in his pre-Booker Guidelines

range should guide our analysis of whether his 1997 conviction

constitutes a felony for purposes of U.S.S.G. §

2L1.2(b)(1)(A)(vii).

A.

Under the sentencing regime in which Bercian-Flores was

sentenced in 1997, the U.S. Sentencing Guidelines were

mandatory. See Booker, 543 U.S. at 233 (“The Guidelines as

written . . . are not advisory; they are mandatory and binding

on all judges.”). However, the Guidelines did give discretion

to district courts to depart upward from the applicable

Guidelines range under certain circumstances.

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Specifically, U.S.S.G. § 5K2.0 (1997) enabled a sentencing

judge to “impose a sentence outside the range established by the

applicable guideline” if the judge found an aggravating

circumstance not adequately taken into consideration by the

Sentencing Commission in formulating the Guidelines. Guideline

5K2.0 further provided that such circumstances “[could not], by

their very nature, be comprehensively listed and analyzed in

advance,” and that the “[p]resence of any such factor may

warrant departure from the guidelines . . . , in the discretion

of the sentencing court.” Id. Additionally, findings

warranting an upward departure need not have been found by a

jury or pled to by the defendant; rather a sentencing judge had

discretion to depart upwards from the Guidelines range so long

as the judge found aggravating facts by a preponderance of the

evidence. See United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005) (recognizing that, both before and after Booker,

decisions about sentencing factors are made by judges on the

preponderance of the evidence) (citing McReynolds v. United

States, 397 F.3d 479, 481 (7th Cir. 2005)).

B.

In the case upon which Bercian-Flores principally relies,

United States v. Simmons, 649 F.3d 237, we considered under what

circumstances a prior North Carolina conviction was punishable

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by a prison term exceeding one year. 1 649 F.3d at 239. Under

the North Carolina Structured Sentencing Act, sentences were

contingent on two factors: 1) the designated “class of offense”

and 2) the offender’s “prior record level.” Id. at 240. Each

of those factors was established by statute. Once a judge

determined the defendant’s prior record level, the defendant was

then sentenced pursuant to a “statutory table, which provides

three possible sentencing ranges—a mitigated range, a

presumptive range, and an aggravated range.” Id. The

presumptive range governed unless the judge made written

findings that identified specific factors designated by the Act

that permitted a departure to the aggravated or mitigated range.

Id.

Notably, under the Structured Sentencing Act, “[a] judge

may select from the aggravated range only if the State has

provided a defendant thirty-days’ notice of its intent to prove

the necessary aggravating factors and a jury has found beyond a

reasonable doubt (or the defendant has pled to) the existence of

1

Our task in Simmons was to determine whether Simmons’s

prior North Carolina conviction constituted a “felony drug

offense” under the Controlled Substances Act (“CSA”), which

mandates a term of imprisonment of at least ten years if the

offense conduct occurred “after a prior conviction for a felony

drug offense has become final.” 21 U.S.C. § 841(b)(1)(B).

Similarly to the Guideline at issue in this case, the CSA

defines “felony drug offense” as a drug-related “offense that is

punishable by imprisonment for more than one year.” 21 U.S.C. §

802(44).

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those factors.” Id. Once the judge identified the appropriate

range, the Structured Sentencing Act required the judge to

choose a sentence from within that range. Id. While the judge,

“[i]n rare cases” could impose a lesser sentence upon a finding

of “extraordinary mitigating factors,” the judge had “no

discretion to impose a more severe sentence even in

extraordinary cases.” Id. at 240 n.2 (emphasis added).

Before Simmons, when assessing whether a defendant’s prior

North Carolina offense was punishable by a prison term greater

than one year we looked to “the maximum aggravated sentence that

could be imposed for that crime upon a defendant with the worst

possible criminal history.” United States v. Harp, 406 F.3d

242, 246 (4th Cir. 2005). However, the Supreme Court’s 2010

decision in Carachuri–Rosendo v. Holder, 560 U.S. 563 (2010),

led us to reconsider that approach.

In Carachuri, the Supreme Court examined a provision of the

Immigration and Nationality Act that permitted an alien to seek

cancellation of removal where he “has not been convicted of any

aggravated felony.” 8 U.S.C. § 1229b(a)(3). Aggravated

felonies as defined by the Act were limited to crimes for which

the “maximum term of imprisonment authorized” is “more than one

year.” Carachuri, 560 U.S. at 567 (quoting 18 U.S.C. §

3559(a)). Carachuri had received a twenty–day sentence for

possessing less than two ounces of marijuana in violation of

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Texas law and a ten–day sentence for possessing a Xanax without

a prescription. The government argued that, hypothetically, had

Carachuri faced federal prosecution for that offense, he could

have been sentenced to two years’ imprisonment. Therefore, the

government contended that his offense was “punishable” by

imprisonment for more than one year.

The Supreme Court unanimously rejected this argument.

Focusing on the INA’s use of the phrase “convicted of a[n]

aggravated felony,” the Supreme Court reasoned that the “text

thus indicates that we are to look to the conviction itself as

our starting place.” Id. at 576. In other words, whether the

conduct underlying the defendant’s prior conviction

hypothetically could have received felony treatment was

irrelevant. See id. at 576–81. Thus the dispositive question

for determining whether a defendant committed an aggravated

felony was simply whether he was actually convicted of an

offense punishable by more than one year in prison.

Applying this reasoning in Simmons, we held that a prior

North Carolina conviction was punishable by imprisonment

exceeding one year only if the particular defendant’s crime of

conviction was punishable under North Carolina law by a prison

term exceeding one year.

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C.

Bercian-Flores likens the pre-Booker U.S. Sentencing

Guidelines to the Structured Sentencing Act, and contends that

under Simmons, his 1997 conviction was not punishable by a term

of imprisonment exceeding one year because the top of his

mandatory Guidelines range for that conviction was six months.

Bercian-Flores’s argument has some intuitive appeal. In

many ways, the pre-Booker U.S. Sentencing Guidelines were no

less mandatory than North Carolina’s Structured Sentencing Act.

See, e.g., Mistretta v. United States, 488 U.S. 361, 391 (1989)

(“[T]he Guidelines bind judges and courts in the exercise of

their uncontested responsibility to pass sentence in criminal

cases.”). While sentencing judges had discretion to depart

upwards from a Guidelines range, in Booker the Supreme Court

characterized that discretion as exceedingly narrow:

At first glance, one might believe that the ability of

a district judge to depart from the Guidelines means

that she is bound only by the statutory maximum. . . .

Importantly, however, departures are not available in

every case, and in fact are unavailable in most. In

most cases, as a matter of law, the Commission will

have adequately taken all relevant factors into

account, and no departure will be legally permissible.

In those instances, the judge is bound to impose a

sentence within the Guidelines range.

543 U.S. at 234.

Bercian-Flores contends that the judge who sentenced him

for his 1997 alien smuggling conviction found no aggravating

10

factors that warranted an upward departure from the Guidelines

range and, therefore, was no less “bound to impose a sentence

within the Guideline range,” which in his case was less than one

year. Id. Bercian-Flores also points to language in the

Simmons opinion indicating that consideration of hypothetical

aggravating factors was not appropriate when determining a

defendant’s maximum sentence under the Structured Sentencing

Act. In Simmons, we stated that

Carachuri . . . forbids us from considering

hypothetical aggravating factors when calculating

Simmons’s maximum punishment. We again focus first on

Simmons’s “conviction itself,” Carachuri, 130 S. Ct.

at 2586, and his conviction makes clear that he was

neither charged with nor convicted of an aggravated

offense, and that he therefore could not receive a

sentence exceeding one year’s imprisonment.

649 F.3d at 244 (emphasis added). Bercian-Flores contends that,

as in Simmons, the sentencing judge made no factual findings

that warranted an upward departure from his zero-to-six-months

Guidelines range, and that we are prohibited from considering

such “hypothetical aggravating factors” when assessing his

maximum sentence. Id. at 244.

Even if we were inclined to extend our holding in Simmons

in the manner that Bercian-Flores requests, we would be

precluded from doing so by the Supreme Court’s ruling in United

States v. Rodriquez, 553 U.S. 377 (2008). In Rodriquez, the

Supreme Court considered whether Washington state’s mandatory

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sentencing guidelines could cap the sentence for a conviction

such that it would not qualify as a predicate felony for

purposes of 18 U.S.C. § 924(e)(1). The Court held that the

“maximum term of imprisonment . . . prescribed by law” for an

offense is not “the top sentence in a guideline range.” Id. at

390-91. The Court reasoned that “guidelines systems typically

allow a sentencing judge to impose a sentence that exceeds the

top of the guidelines range under appropriate circumstances.”

Id. at 390. The Supreme Court directly referenced U.S.

Sentencing Guideline § 5K2.0, stating that the Guidelines permit

upward departures in the same manner as “all of the mandatory

guidelines systems in existence at the time of the enactment of

the [Armed Career Criminals Act] provision at issue in this

case.” Id. (emphasis added).

In Simmons we distinguished the mandatory guideline system

at issue in Rodriquez from the legislatively mandated system

that North Carolina adopted. We explained that the Structured

Sentencing Act “does not establish a ‘guidelines system[ ]’;

rather, it mandates specific sentences.” Simmons, 648 F.3d at

244 (citing State v. Norris, 630 S.E.2d 915, 917–18 (N.C.

2006)). Unlike the guidelines systems referred to in Rodriquez,

“no circumstances exist under the Structured Sentencing Act in

which a North Carolina judge may ‘impose a sentence that exceeds

the top’ of the ‘range’ set forth in the Act.” Simmons, 649

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F.3d at 244 (quoting Rodriquez, 553 U.S. at 390). The

Structured Sentencing Act thus served as “a legislative mandate

and not as a ‘guidelines system[ ].’” Id.

Rodriquez and our interpretation of it in Simmons foreclose

the approach that Bercian-Flores asks us to adopt. As the

Supreme Court made clear, the “maximum term of imprisonment . .

. prescribed by law” for an offense is not “the top sentence in

a guideline range.” Rodriquez, 553 U.S. at 391. Bercian-Flores

makes no attempt to distinguish Rodriquez, and we see no avenue

for doing so. 2

What is more, Bercian-Flores ignores crucial differences

between North Carolina’s Structured Sentencing Act and the

mandatory pre-Booker federal sentencing regime. Under the

Structured Sentencing Act, “an offender can receive an

aggravated sentence only if” inter alia “a jury has found beyond

a reasonable doubt (or the defendant has pled to) the existence

of those factors.” Simmons, 649 F.3d at 240. By contrast, the

pre-Booker Sentencing Guidelines did not specify the aggravating

factors that the judge was authorized to consider and further

2

While it is true that Rodriquez was decided at a time when

the U.S. Sentencing Guidelines were no longer mandatory, the

Court’s reasoning expressly applied to mandatory guidelines

regimes. Indeed the Court’s reference to Section 5K2.0 was

designed to illustrate the type of discretion that sentencing

judges have under mandatory systems. See Rodriquez, 553 U.S. at

390. Thus timing also provides no basis for distinguishing

Rodriquez.

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did not require that a jury find such factors beyond a

reasonable doubt. See, e.g., Morris, 429 F.3d at 72.

Thus, even under the pre-Booker Guidelines, federal

sentencing judges were not bound by the record of conviction and

were not “mandated” to sentence the defendant in a particular

range in the same way that North Carolina judges were. Rather,

regardless of facts found by the jury or pled to by the

defendant, under the pre-Booker Sentencing Guidelines, the

sentencing judge had discretion to sentence a defendant above

his or her applicable range up to the statutory maximum in

appropriate circumstances.

Our recent decisions in United States v. Kerr, 737 F.3d 33

(4th Cir. 2013), and United States v. Valdovinos, 760 F.3d 322

(4th Cir. 2014), further support the conclusion that the

statutory maximum sentence set by Congress, and not the top

sentence in Bercian-Flores’s Guidelines range, is determinative

of whether his prior conviction constituted a predicate felony.

In Kerr, the defendant argued that his prior North Carolina

state convictions did not qualify as predicate felonies for

sentencing under the Armed Career Criminal Act, because the

sentencing judge sentenced him within the mitigated range rather

than the presumptive range of punishment under the Structured

Sentencing Act. 737 F.3d at 34. The defendant’s maximum

sentence was eleven months based on his mitigated sentence range

14

as found by the sentencing judge and fourteen months under the

presumptive range. We held that the defendant’s presumptive

range determined his maximum term of imprisonment for purposes

of the Armed Career Criminal Act, and, therefore, that his prior

offense qualified as a predicate felony. Even though the

sentencing judge determined that mitigating factors in the

defendant’s case required a lower sentencing range, the fact

that the court had discretion to sentence the defendant at a

higher range controlled. Id. at 38-39.

In Valdovinos, we considered whether a defendant’s prior

drug trafficking conviction qualified as a predicate felony

where the defendant was sentenced pursuant to a plea agreement

that “capped his prison term at 12 months.” 760 F.3d at 324.

We held that where the Structured Sentencing Act authorized a

maximum sentence of sixteen months’ imprisonment, the offense

was punishable by a term of imprisonment exceeding one year even

though the sentence ultimately imposed pursuant to his plea deal

was for less than one year. We explained that

in contrast to North Carolina’s mandatory sentencing

scheme, under which a judge may never “impose a

sentence that exceeds the top of the range set forth

in the Act,” a plea agreement’s recommended sentence

is not the final word under North Carolina law. This

is so because the sentencing judge remains free to

reject the agreement.

Id. at 328 (quoting Simmons, 649 F.3d at 244).

15

Kerr and Valdovinos confirm that the salient question to be

asked after Simmons is whether the sentencing judge could

sentence a particular defendant to a term of imprisonment

exceeding one year. In Simmons, the answer was no. The same

cannot be said for Bercian-Flores. Even under the pre-Booker

Sentencing Guidelines, the district court had discretion to

sentence Bercian-Flores up to the statutory maximum of five

years.

D.

At bottom, Bercian-Flores fails to appreciate that our

holding in Simmons did not change the fact that the cornerstone

of our predicate-felony analysis must be the defendant’s offense

of conviction. Valdovinos, 760 F.3d at 327 (citing Carachuri,

560 U.S. at 576 & 582). “‘[T]he qualification of a prior

conviction [as a sentencing predicate] does not depend on the

sentence [a defendant] actually received’ but on the maximum

sentence permitted” for his offense of conviction. Valdovinos,

760 F.3d at 327 (quoting United States v. Edmonds, 679 F.3d 169,

176 (4th Cir. 2012), vacated on other grounds, 133 S. Ct. 376,

aff’d on remand, 700 F.3d 146 (4th Cir. 2012)).

The U.S. Sentencing Guidelines—whether mandatory or

advisory—cannot change a defendant’s offense of conviction; that

has been defined by Congress. Bercian-Flores was convicted of

unlawfully transporting aliens in violation of 8 U.S.C. §

16

1324(a)(1)(B)(ii) (1994). Congress set the maximum term of

imprisonment for that offense at five years.

IV.

For the foregoing reasons, we hold that the statutory

maximum term of imprisonment of five years set by Congress, and

not the top sentence in Bercian-Flores’s pre-Booker Sentencing

Guidelines range, is determinative of whether he committed a

predicate felony under U.S.S.G. § 2L1.2(b)(1)(A)(vii).

Therefore the district court did not err in overruling Bercian-

Flores’s objection and imposing a twelve-level enhancement for

Bercian-Flores’s 1997 alien-smuggling conviction.

AFFIRMED

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