United States v. Guzman-Mata

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-10061

v.

 D.C. No.

CR-07-01518-FRZ

SAIR GUZMAN-MATA, a.k.a. Claudio

Rios-Guzman, OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the District of Arizona

Frank R. Zapata, District Judge, Presiding

Argued and Submitted

February 9, 2009—San Francisco, California

Filed August 27, 2009

Before: John T. Noonan, Marsha S. Berzon, and

N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

11939

UNITED STATES v. GUZMAN-MATA 11941

COUNSEL

David T. Shannon, Assistant Arizona Federal Public

Defender, Tuscon, Arizona, for defendant-appellant, Sair

Guzman-Mata.

11942 UNITED STATES v. GUZMAN-MATA

Celeste B. Corlett and George Ferko, Assistant United States

Attorneys for the District of Arizona, Tuscon, Arizona, for

appellee United States of America.

OPINION

N.R. SMITH, Circuit Judge:

Appellant Sair Guzman-Mata appeals the sentence imposed

after he pleaded guilty to illegal re-entry into the United

States, in violation of 8 U.S.C. § 1326. Specifically, Guzman-

Mata challenges the district court’s imposition of a 16-level

enhancement (under the U.S. Sentencing Guidelines Manual

(U.S.S.G.) § 2L1.2(b)(1)(A)) for Guzman-Mata’s prior con-

viction under 8 U.S.C. § 1324(a)(1)(A).1 We hold that a con-

viction under 8 U.S.C. § 1324(a)(1) is categorically an “alien

smuggling offense” under U.S.S.G. § 2L1.2(b)(1)(A). There-

fore, the district court did not plainly err in imposing the

enhancement and we affirm Guzman-Mata’s sentence.

FACTS AND PROCEDURAL HISTORY

Guzman-Mata was deported in August 2007 following his

arrest and conviction for felony domestic assault in Minne-

sota. Three days after his deportation, Border Patrol agents in

Naco, Arizona, apprehended Guzman-Mata. He was subse-

quently charged with illegal re-entry, in violation of 8 U.S.C.

§ 1326, enhanced by 8 U.S.C. § 1326(b)(2). With the advice

of counsel, Guzman-Mata pleaded guilty on October 9, 2007.

1

That statute punishes, in pertinent part, any person who “knowing or

in reckless disregard of the fact that an alien has come to, entered, or

remains in the United States in violation of law, transports, or moves or

attempts to transport or move such alien within the United States by means

of transportation or otherwise, in furtherance of such violation of law[.]”

8 U.S.C. § 1324(a)(1)(A)(ii).

UNITED STATES v. GUZMAN-MATA 11943

The Presentence Investigation Report (“PSR”) determined

that Guzman-Mata had a Criminal History Category of VI for

eighteen different criminal convictions over a ten-year period.2

At the time of his sentencing, the record indicated that

Guzman-Mata had been previously deported fourteen times.

For the present § 1326 violation, the district court deter-

mined Guzman-Mata’s base offense level to be eight. See

U.S.S.G. § 2L1.2. Guzman-Mata received a three point reduc-

tion for acceptance of responsibility and for timely notifying

the government of an intention to plead guilty. See U.S.S.G.

§§ 3E1.1(a)-(b). Per the PSR, the district court also applied a

16-level enhancement (under U.S.S.G. § 2L1.2(b)(1)(A)(vii))

for Guzman-Mata’s prior conviction of an alien smuggling

offense under 8 U.S.C. § 1324(a)(1). With a total offense

level of 21, the district court calculated the sentencing range

to be 77 to 96 months. The district court then expressly con-

sidered the § 3553(a) sentencing factors and sentenced

Guzman-Mata to 77 months’ imprisonment. At sentencing,

Guzman-Mata made no objection to the PSR or to the sen-

tence imposed. This appeal followed.

STANDARD OF REVIEW

We review de novo the district court’s interpretation and

application of the Federal Sentencing Guidelines, including

whether a prior conviction qualifies for enhancement under

U.S.S.G. § 2L1.2(b)(A). See United States v. Rodriguez-

Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005). However,

because Guzman-Mata did not object to the sentencing

enhancement at the time of sentencing, we review his sen-

tence only for plain error. See United States v. Rodriguez-

Lara, 421 F.3d 932, 948 (9th Cir. 2005). Plain error is “(1)

error, (2) that is plain, and (3) that affects substantial rights.”

Id. (quoting United States v. Ameline, 409 F.3d 1073, 1078

2

One of Guzman-Mata’s prior convictions was for illegal re-entry, for

which he served eight months’ imprisonment.

11944 UNITED STATES v. GUZMAN-MATA

(9th Cir. 2005) (en banc) (omitting citation and internal quota-

tion marks)). Even if Guzman-Mata shows plain error, we

may only reverse if the error “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at

948-49 (quoting Ameline, 409 F.3d at 1078 and omitting cita-

tion and internal quotation).

DISCUSSION

I. A Conviction under § 1324(a)(1) Qualifies as an “Alien

Smuggling Offense” under U.S.S.G. § 2L1.2(b)(1)(A).

We must decide whether Guzman-Mata’s prior conviction

under 8 U.S.C. § 1324(a)(1)(A)(ii)3 qualifies as an “alien

smuggling offense” for the purposes of U.S.S.G.

§ 2L1.2(b)(1)(A). To do so, we look to § 1324(a)(1)(A) and

compare its elements to the definition of an alien smuggling

offense under U.S.S.G. § 2L1.2(b)(1)(A)(vii) to determine

whether the “statutory definition substantially corresponds to

[the] ‘generic’ [offense].” See Taylor v. United States, 495

U.S. 575, 602 (1990).

[1] When interpreting the Sentencing Guidelines, we apply

the general rules of statutory construction. See United States

v. Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2007) (citations

omitted). Under these rules, “[t]he plain meaning of unambig-

uous language in a guideline provision controls.” Id.

“[C]ommentary in the Guidelines Manual that interprets or

explains a guideline is authoritative unless it violates the Con-

stitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline.” Stinson v.

United States, 508 U.S. 36, 38 (1993).

3

Unless otherwise noted, citations or references to the United States

Code, which omit the title, are references to Title 8.

UNITED STATES v. GUZMAN-MATA 11945

A. The Alien Smuggling Enhancement Applies when

the Defendant has been Previously Convicted of

Violating § 1324(a)(1)(A).

[2] We begin with the text of the relevant Guideline, which

provides, “If the defendant previously was deported, or

unlawfully remained in the United States, after . . . an alien

smuggling offense, increase [the offense level] by 16 levels.”

U.S.S.G. § 2L1.2(b)(1)(A)(vii) (emphasis added). The com-

mentary to the Guideline provides: “ ‘Alien smuggling

offense’ has the meaning given that term in section

101(a)(43)(N) of the Immigration and Nationality Act

[“INA”] (8 U.S.C. [§ ] 1101(a)(43)(N)).” U.S.S.G. § 2L1.2,

cmt. app. n.1(B)(i). The INA defines “alien smuggling

offense” as:

an offense described in paragraph (1)(A) or (2) of

section 1324(a) of this title (relating to alien smug-

gling), except in the case of a first offense for which

the alien has affirmatively shown that the alien com-

mitted the offense for the purpose of assisting, abet-

ting, or aiding only the alien’s spouse, child, or

parent (and no other individual) to violate a provi-

sion of this chapter[.]

§ 1101(a)(43)(N) (emphasis added).

[3] We find nothing ambiguous about the plain language of

the Guideline, its commentary, and the statutory definitions it

incorporates by reference. The 16-level alien smuggling

enhancement applies if there is a prior conviction for an

offense described in § 1324(a)(1)(A) or (2). See U.S.S.G.

§ 2L1.2(b)(1)(A)(vii) & cmt. app. note 1(B)(I);

§ 1101(a)(43)(N). In this case, the offense (for which

Guzman-Mata was previously convicted and for which the

district court applied the sentencing enhancement) was a vio-

lation of § 1324(a)(1)(A)(ii). Therefore, the alien smuggling

enhancement applies unless Guzman-Mata can show that he

11946 UNITED STATES v. GUZMAN-MATA

falls within its limited exception. That is, a prior conviction

under § 1324(a)(1)(A) will qualify as an alien smuggling

offense “except in the case of a first offense for which the

alien has affirmatively shown that the alien committed the

offense for the purpose of assisting, abetting, or aiding only

the alien’s spouse, child, or parent (and no other individual)

to violate a provision of this chapter[.]” See § 1101(a)(43)(N)

(emphasis added)).4

At sentencing, Guzman-Mata did not argue and made no

effort to show that his prior offense was a first offense that

involved only members of his family.5 In fact, Guzman-Mata

raised no objections regarding the district court’s adoption of

the PSR and imposition of the 16-level enhancement. Given

the plain language of the statute and Guzman-Mata’s failure

to show the applicability of the exception, it would appear

that the district court did not commit plain error in imposing

the enhancement under § 2L1.2(b)(1)(A)(vii).

B. The Family Exception is Not an Element of the

Generic Alien Smuggling Offense.

[4] Guzman-Mata argues against this fairly obvious conclu-

sion. Although the generic alien smuggling offense is defined

by express cross-reference to § 1324(a)(1)(A), Guzman-Mata

maintains that the district court nonetheless erred in conclud-

ing that § 1324(a)(1)(A) is categorically an alien smuggling

offense under U.S.S.G. § 2L1.2(b)(1)(A)(vii). Specifically, he

contends that the family caveat to the enhancement is not

merely an exception, but an element of the generic alien

smuggling offense. Because § 1324(a)(1)(A) criminalizes

4

The enhancement’s exception for first offenses involving “the alien’s

spouse, child, or parent (and no other individual)” is referred to herein as

the “family exception.”

5

On appeal, Guzman-Mata also does not contend that his prior convic-

tion, under 8 U.S.C. § 1324(a)(1)(A), was an offense committed to help

a spouse, parent, or child (and no one else).

UNITED STATES v. GUZMAN-MATA 11947

alien smuggling regardless of whether it is a first offense

involving a spouse, parent, or child, Guzman-Mata argues that

the statute is too broad to categorically be an alien smuggling

offense (i.e. the generic offense contains an element that

§ 1324(a)(1)(A) does not). We disagree.

[5] To address Guzman-Mata’s argument, we must decide

whether the family exception is an element of the generic

alien smuggling offense. Guided by the Supreme Court’s

recent decision in Nijhawan v. Holder, ___ U.S. ___, 129 S.

Ct. 2294 (2009), we conclude that the family exception is not

an element of the generic offense, but “refers to the particular

circumstances in which [the defendant] committed [an alien

smuggling offense] on a particular occasion.” See Nijhawan,

129 S. Ct. at 2298, 2300-01.6

In Nijhawan, the Supreme Court held that the $10,000

monetary loss requirement for generic aggravated felony

offenses involving fraud or deceit was not an element of the

generic fraud or deceit crime, but referred “to the particular

circumstances in which an offender committed a (more

broadly defined) fraud or deceit crime on a particular occa-

sion.” Nijhawan, 129 S. Ct. at 2298. At issue in Nijhawan was

the immigration law that provides that any “alien who is con-

victed of an aggravated felony at any time after admission is

deportable.” Id. at 2297 (emphasis in original) (quoting 8

U.S.C. § 1227(a)(2)(A)(iii)). The definition of “aggravated

felony” included “ ‘an offense that . . . involves fraud or

deceit in which the loss to the victim or victims exceeds

$10,000.’ ” Id. (quoting § 1101(a)(43)(M)(i)). Nijhawan was

convicted of conspiracy to commit mail fraud, wire fraud,

bank fraud, and money laundering, in violation of 18 U.S.C.

§§ 371, 1341, 1343, 1344, and 1956(h). Id. Although none of

6

The Supreme Court’s holding in Nijhawan abrogates, in part, our prior

decisions in Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) and

Chang v. INS, 307 F.3d 1185 (9th Cir. 2002). Therefore, Guzman-Mata’s

reliance on these cases is of no value.

11948 UNITED STATES v. GUZMAN-MATA

the statutes underlying the fraud conviction required any find-

ing of a particular amount of victim loss, the petitioner stipu-

lated (at sentencing) that the loss exceeded $100 million. Id.

In the immigration proceedings that followed, the Govern-

ment claimed that the prior fraud conviction fell within the

definition of “aggravated felony,” and therefore, the petitioner

was deportable. Id. The petitioner argued that (1) the $10,000

monetary loss requirement was an element of the generic

fraud offense constituting an aggravated felony, (2) the stat-

utes under which he was previously convicted did not require

a finding of loss in excess of $10,000, and therefore (3) his

prior conviction was not categorically an aggravated felony

permitting his deportation. See generally id.

Rejecting the petitioner’s contention, the Court reasoned

that there are two ways to interpret statutory language in

§ 1101(a)(43) defining an aggravated felony (such as the

$10,000 monetary loss requirement of § 1101(a)(43)(M)(i)).

Id. at 2298-99. The first, which the Court called “categorical,”

refers to the generic crime (and its elements). Id. The second,

which the Court called “circumstance-specific,” “refer[s] to

the specific way in which an offender committed the crime on

a specific occasion.” Id. The Court stated that the “language

of the [$10,000 monetary loss] provision is consistent with a

circumstance-specific approach, explaining that the words

used to describe the monetary loss requirement “refer[red] to

the conduct involved in the commission of the offense of con-

viction, rather than to the elements of the offense.” Id. at 2301

(internal quotations and emphasis omitted).

In reaching this conclusion (and relevant to the present

case), the Supreme Court highlighted the language of

§ 1101(a)(43)(N) & (P) to illustrate the point that the “aggra-

vated felony” statute “lists certain other ‘offenses’ using lan-

guage that almost certainly does not refer to the generic

crimes but refers to specific circumstances.” Id. at 2300. As

its primary example of statutory language that does not refer

UNITED STATES v. GUZMAN-MATA 11949

to an element of the generic offense, the Court considered the

exact language of the family exception at issue here: “except

in the case of a first offense for which the alien has affirma-

tively shown that the alien committed the offense for the pur-

pose of assisting, abetting, or aiding only the alien’s spouse,

child, or parent (and no other individual) to violate a provi-

sion of this chapter.” See id. at 2300 (alterations removed)

(quoting § 1101(a)(43)(P) and citing § 1101(a)(43)(N)). The

Court concluded:

The . . . exception cannot possibly refer to a generic

crime. That is because there is no such generic

crime; there is no criminal statute that contains any

such exception. Thus if the provision is to have any

meaning at all, the exception must refer to the partic-

ular circumstances in which an offender committed

the crime on a particular occasion.

Id. at 2300-01 (referring to § 1101(a)(43)(P) and also citing

§ 1101(a)(43)(N)).

[6] Indeed, if we construed the family exception categori-

cally as an element of the generic offense, the alien smuggling

enhancement would have no meaningful application. That is,

the enhancement applies only for a prior conviction of violat-

ing § 1324(a)(1)(A) or (2). Yet, none of the offenses

described in § 1324(a)(1)(A) or (2) contains any qualifying

language that would exclude a first offense involving only a

spouse, parent or child. Thus, to hold that the family excep-

tion should be read as an element of the generic alien smug-

gling offense would be to read the alien smuggling

enhancement into nonexistence. We conclude, therefore, that

the family exception of § 1101(a)(43)(N) is not an element of

the generic alien smuggling offense, and therefore need not be

applied categorically. Because the generic alien smuggling

offense is defined as a violation of § 1324(a)(1)(A) (the very

statute for which Guzman-Mata was previously convicted),

we hold that § 1324(a)(1)(A) is categorically an alien smug-

11950 UNITED STATES v. GUZMAN-MATA

gling offense under Taylor v. United States, 495 U.S. 575

(1990). Therefore, the district court did not plainly err in this

regard.

II. The Government Bears the Burden of Proving the

Applicability of the Alien Smuggling Enhancement,

But Guzman-Mata Was Required to Affirmatively

Show that He Fell Within the Family Exception.

A. The Plain Language of the Guideline Required

Guzman-Mata to Show that the Family Exception

Applied.

We reject Guzman-Mata’s contention that the alien smug-

gling enhancement must be construed to require the Govern-

ment to prove that a family exception does not apply. The

Fifth Circuit rejected the same arguments Guzman-Mata now

makes in United States v. Rabanal, 508 F.3d 741 (5th Cir.

2007). In Rabanal, the defendants similarly challenged a six-

teen level enhancement under U.S.S.G. § 2L1.2, for their

prior convictions under § 1324(a)(1)(A). Id. at 743. The

defendants argued that the government failed to prove that

their prior offenses involved aliens other than family, arguing

“that the Government, as the proponent of the sentencing

enhancement, has the burden of identifying the aliens previ-

ously transported in order to prove the prior convictions were

for alien smuggling offenses.” Id. In rejecting this argument,

the Fifth Circuit concluded:

The factual predicate the Government must establish

for a sentence enhancement under

§ 2L1.2(b)(1)(A)(vii) and the cross-reference to

§ 1101(a)(43)(N) is a prior conviction for an offense

under 8 U.S.C. § 1324(a)(1)(A) or (2). The burden is

on the defendant to ‘affirmatively show [ ]’ that the

prior offense was a first offense involving only qual-

ifying family members.

UNITED STATES v. GUZMAN-MATA 11951

Id. at 743. We agree with the Fifth Circuit.

“The government bears the burden of proving, by a prepon-

derance of the evidence, the facts necessary to enhance a

defendant’s offense level under the Guidelines.” United States

v. Burnett, 16 F.3d 358, 361 (9th Cir. 1994) (citation omitted);

see also Ameline, 409 F.3d at 1085-86. The Government

meets this initial burden of proving that the alien smuggling

enhancement applies by showing the defendant has a prior

conviction under § 1324(a)(1)(A). See U.S.S.G.

§ 2L1.2(b)(1)(A)(vii) & cmt. app. note 1(B)(I);

§ 1101(a)(43)(N); United States v. Allen, 434 F.3d 1166, 1173

(9th Cir. 2006) (“[T]he burden of proof falls on the party

seeking to adjust the offense level.”) (citation omitted). Here,

there is no dispute that the Government proved that Guzman-

Mata was previously convicted of violating 8 U.S.C.

§ 1324(a)(1)(A).7

[7] Guzman-Mata correctly states that the Government did

not prove that the family exception did not apply. However,

to avoid the enhancement, the Guideline unquestionably

requires the defendant (not the Government) to affirmatively

show that the family exception applies. See § 1101(a)(43)(N).

The Government “need not negative the matter of an excep-

tion made by a proviso or other distinct clause.” United States

v. Gravenmeir, 121 F.3d 526, 528 (9th Cir. 1997). Further, “a

defendant who relies upon an exception to a statute made by

a proviso or distinct clause, whether in the same section of the

7

The uncontroverted PSR reported the conviction and Guzman-Mata

made no objection. The district court was entitled to rely on the unchal-

lenged PSR at sentencing to find that the facts underlying the sentence

enhancement have been established. United States v. Romero-Rendon, 220

F.3d 1159, 1161 (9th Cir. 2000) (citing United States v. Marin-Cuevas,

147 F.3d 889, 895 (9th Cir. 1998)). Furthermore, a PSR that specifies the

statute of conviction is sufficient to satisfy the government’s burden of

proving a sentence enhancement. Romero-Rendon, 220 F.3d at 1164 (if an

uncontroverted PSR specifies the statute of conviction, additional evi-

dence is not necessary).

11952 UNITED STATES v. GUZMAN-MATA

statute or elsewhere, has the burden of establishing and show-

ing that he comes within the exception.” See United States v.

Freter, 31 F.3d 783, 788 (9th Cir. 1994) (internal citations

and quotation marks omitted).

[8] In this case, the family exception to the alien smuggling

enhancement is made by a distinct clause in § 1101(a)(43)(N).

The Guideline unequivocally creates an exception and, there-

fore, the defendant bears the burden of showing that he comes

within it. Given the additional statutory language requiring

the defendant to “affirmatively show” that his prior offense

was committed only to help family, we have no doubt that the

burden rested on Guzman-Mata to prove that the family

exception applied to his case—a burden he did not make any

attempt to meet.

B. The Family Exception Does Not Impermissibly

Shift the Burden of Proof.

We also reject Guzman-Mata’s argument that the family

exception impermissibly shifts the burden of proof on the

applicability of the alien smuggling enhancement. We reiter-

ate the general rule that “the burden of proof falls on the party

seeking to adjust the offense level.” See Allen, 434 F.3d at

1173. However, “[t]he burden of proof includes both the bur-

den of persuasion and the burden of production.” Black’s Law

Dictionary 209 (8th ed. 2004). In Freter, with regard to the

crime of conviction, when we held that the defendant gener-

ally bears the burden to prove an affirmative defense, we clar-

ified:

[W]e do not intend to imply that the government’s

ultimate burden of proving . . . every fact necessary

to constitute the offense is altered. Instead, we hold

only that if the defendant wishes to rely on this

exception, he has the initial burden of going forward

with sufficient evidence to raise the exception as an

issue. Once the defendant has satisfied his burden of

UNITED STATES v. GUZMAN-MATA 11953

production with respect to the affirmative defense,

the prosecution must prove the inapplicability of the

defense . . . .

Freter, 31 F.3d at 789 n.6 (citations omitted). We find no rea-

son why the rule should be stricter in the sentencing context.

Thus, the government has the initial burden of production and

ultimate burden of persuasion, but once it makes a prima facie

case, the burden of production shifts to the defendant for any

adjustment he is seeking. See also United States v. Bruce, 394

F.3d 1215, 1222-23 (9th Cir. 2005) (discussing the burden of

proof, persuasion, and production in a criminal prosecution

where the defendant asserted “Indian status” as a defense to

an alleged crime governed by 18 U.S.C. § 1152). We there-

fore hold that, to satisfy the burden of production on a sen-

tencing adjustment he is seeking, a defendant must “come

forward with enough evidence . . . to permit a fact-finder to

decide the issue in her favor.” Id. at 1223. After a defendant

meets this burden, “the government retains the ultimate bur-

den of persuasion . . . to persuade the trier of fact of the truth

of the proposition . . . that the exception she claims is inappli-

cable.” See id. at 1223 (internal citations and quotation marks

omitted).

In this case, for the enhancement to apply, the government

had to make a prima facie case that the defendant had a prior

alien smuggling offense as defined by § 1324(a)(1)(A). It did

this by presenting the uncontroverted PSR showing that

Guzman-Mata was convicted of § 1324(a)(1)(A)(ii). See

Romero-Rendon, 220 F.3d at 1164 (uncontroverted PSR stat-

ing the statute of conviction requires no further evidence).

The statute then shifts the burden of production to the defen-

dant to offer evidence that the exception applies.

§ 1101(a)(43)(N). If the defendant satisfies his burden of pro-

duction (which Guzman-Mata made no attempt to do in this

case), the government retains the ultimate burden of persua-

sion and must then prove that the exception is inapplicable.

Thus, although the family exception expressly requires the

11954 UNITED STATES v. GUZMAN-MATA

defendant to affirmatively show that he comes within its

bounds, it cannot be said that this requirement impermissibly

shifts the “burden of proof” regarding the applicability of the

alien smuggling enhancement.

Our decision in Allen is distinguishable from the present

case. In that case, the defendant pleaded guilty to a counter-

feiting offense and received an enhancement (under U.S.S.G.

§ 2B5.1(b)(2)(A)) for having “manufactured or produced any

counterfeit obligation or security of the United States, or pos-

sessed or had custody of or control over a counterfeiting

device or materials used for counterfeiting.” 434 F.3d at

1168-69. Note 4 to § 2B5.1(b)(2)(A) states that the enhance-

ment “does not apply to persons who produce items that are

so obviously counterfeit that they are unlikely to be accepted

even if subjected to only minimal scrutiny.” Id. at 1170 (quot-

ing U.S.S.G. § 2B5.1 cmt. n.4) (internal quotation marks

omitted). The defendant argued that the government failed to

prove that the items were not obviously counterfeit. We

rejected the government’s counter argument that Note 4 cre-

ated an exception to the enhancement for which the defendant

bore the burden of proof. We reasoned that the provision stat-

ing that the enhancement “does not apply to transparently

counterfeit currency [is] the equivalent of stating that the sub-

section applies only to notes that could be taken as real.” Id.

at 1174 (internal quotation marks omitted). We concluded,

“As the defendant bears no burden to establish that circum-

stances exist in which [the enhancement] does apply, he bears

no burden to demonstrate that the counterfeiting devices and

materials he possessed produced or could produce realistic

counterfeits.” Id. at 1174.

We do not read our decision in Allen to require the Govern-

ment to prove the negative of an express exception to an oth-

erwise applicable sentencing enhancement. The specific

language in the notes to U.S.S.G. § 2B5.1(b)(2)(A) controlled

the outcome in Allen. Unlike the present case, the notes at

issue in Allen did not clearly create an exception, but rather

UNITED STATES v. GUZMAN-MATA 11955

clarified the scope of the predicate facts the Government must

establish to show the enhancement’s applicability. See Allen,

434 F.3d at 1174; U.S.S.G. § 2B5.1 cmt. n. 4. Not only does

the Guideline addressed in Allen not create an express excep-

tion, it also did not ascribe any affirmative duty to the defen-

dant to show that he qualified for the exception. In stark

contrast, the Guideline in the present case clearly creates an

exception and expressly places the burden squarely on the

defendant to show that the exception applies.

Guzman-Mata also argues that Taylor prohibits him from

presenting “extra-record facts” to prove that he falls within

the family exception, but that he nonetheless met his burden

of proof on the applicability of the family exception if the

record of conviction is inconclusive (as to facts supporting the

applicability of the exception) (citing Sandoval-Lua v. Gon-

zales, 499 F.3d 1121, 1131-32 (9th Cir. 2007)). This argument

is without merit. First, it incorrectly presumes that the statute

under which Guzman-Mata was previously convicted

(§ 1324(a)(1)(A)) is too broad to categorically be an alien

smuggling offense under the Guideline. As we held above,

Guzman-Mata’s statute of prior conviction is, in fact, the

generic alien smuggling offense. Therefore, the Taylor bar to

inquiry into the underlying facts of a prior conviction simply

has no application.

Second, as we held earlier, the alien smuggling enhance-

ment expressly permits inquiry into the defendant’s prior con-

duct (as opposed to defining the applicability of the

enhancement purely “in terms of offenses and their ele-

ments”). See United States v. Martinez-Candejas, 347 F.3d

853, 859 (10th Cir. 2003) (concluding that the Taylor categor-

ical approach is not applicable to enhancements based on

prior alien smuggling offenses which the defendant could

negate by showing he smuggled only family members)). That

is, the Guideline permits a defendant to avoid the enhance-

ment by affirmatively showing that his prior conduct miti-

gates the seriousness of his prior conviction. In this case,

11956 UNITED STATES v. GUZMAN-MATA

Guzman-Mata was both entitled and required to introduce evi-

dence to support any contention that he qualified for the fam-

ily exception.

Third (and most important on plain error review), Guzman-

Mata’s argument ignores the fact that he (1) made no objec-

tion to the alien smuggling enhancement at sentencing, (2) did

not argue that his prior conduct made the exception applica-

ble, and (3) presented no evidence that his alien smuggling

offense was committed to help only members of his family.

Where Guzman-Mata’s record of conviction is conclusive as

to the fact that he was previously convicted for violating

§ 1324(a)(1)(A), it cannot be said that the district court com-

mitted plain error.

CONCLUSION

[9] Guzman-Mata’s prior conviction under

§ 1324(a)(1)(A)(ii) is an alien smuggling offense as defined

under the relevant Guideline. See U.S.S.G.

§ 2L1.2(b)(1)(A)(vii) & cmt. app. note 1(B)(I);

§ 1101(a)(43)(N). The family exception to the enhancement is

not an element of the generic alien smuggling offense, but is

an affirmative defense that turns on the specific circumstances

in which the prior offense was committed. Guzman-Mata had

the burden of showing that the exception applied, but he (1)

failed to object to the enhancement, (2) made no argument

that he fell within the family exception, and (3) presented no

evidence that the exception applied. Accordingly, we con-

clude that the district court did not err (let alone commit plain

error) in imposing the 16-level enhancement.

AFFIRMED.