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United States v. Moreno-Ayala

United States District Court, D. Kansas

August 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARIO ULISES MORENO-AYALA, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Mario Ulises Moreno-Ayala's Objection Number One to the Presentence Investigation Report (“PSR”) (Doc. 24). Defendant objects to the use of the 2016 version of the United States Sentencing Guidelines (“U.S.S.G.”) to calculate his adjusted offense level pursuant to § 2L1.2. Rather, he argues the 2015 version of the U.S.S.G. should have been used because it would have resulted in a lower Guideline sentencing range. In support of his objection, he filed a Sentencing Memorandum (Doc. 25). The Government responded to the Sentencing Memorandum and filed a supplemental response.[1] The Court held a sentencing hearing and heard oral argument on Defendant's Objection on April 3, 2017, at which time the Court took the Objection under advisement. After considering the Objection, the sentencing memorandum and responses, and the parties' arguments at the April 3 hearing, the Court is prepared to rule. For the reasons stated below, Defendant's Objection Number One to the PSR is overruled.

         I. Background

         On March 17, 2016, a grand jury returned a one-count Indictment against Defendant, which charged him with Unlawful Reentry Following Deportation for a Felony in violation of 8 U.S.C. §§ 1326(a), (b).[2] These charges stemmed from a February 16, 2016 traffic stop where Defendant was found in the passenger seat. Prior to the 2016 traffic stop, Defendant was convicted on June 20, 2012 of Reentry Following Deportation for an Aggravated Felony. Defendant was convicted in 2009 for automobile burglary in Wyandotte County, Kansas.

         On November 15, 2016, Defendant appeared with counsel and pled guilty to Count 1 of the Indictment- Unlawful Reentry Following Deportation for a Felony. There was no plea agreement. The base offense level calculated in the PSR was 8.[3] Defendant received a four-level enhancement for committing the instant offense after sustaining a conviction for a felony that is an illegal reentry offense.[4] Defendant received another four-level enhancement for being previously deported following a felony for his conviction for an automobile burglary in Wyandotte County.[5] His adjusted offense level was 16. He received a three-level reduction for acceptance of responsibility.[6] His total offense level was calculated as 13 with a criminal history category of IV, which led to a Guidelines sentencing range of 24-30 months.

         Under the 2016 U.S.S.G., § 2L1.2 sets his base offense level at 8 with a four-level enhancement for his prior felony reentry offense under § 2L1.2(b)(1)(A) and a four-level enhancement for his prior felony (automobile burglary) under § 2L1.2(b)(2)(D). Thus, his adjusted offense level is 16 under the 2016 U.S.S.G. By contrast, Defendant argues under the 2015 U.S.S.G., he would have a base offense level of 8 with a four-level enhancement under § 2L1.2(b)(1)(D). He argues that the 2015 U.S.S.G. eight-level enhancement under § 2L1.2(b)(1)(C) would not apply because he does not have a prior conviction that is considered an aggravated felony. Thus, his adjusted offense level would be 12 under the 2015 U.S.S.G.

         The Government responds that using either the 2015 or 2016 U.S.S.G., Defendant has an adjusted offense level of 16. Under the 2016 U.S.S.G., Defendant's adjusted offense level is 16 based on the base offense level of 8 plus a four-level enhancement for § 2L1.2(b)(1)(A) and a four-level enhancement for § 2L1.2(b)(2)(D). The Government argues that under the 2015 U.S.S.G., Defendant's adjusted offense level is 16 based on a base offense level of 8 plus an eight-level enhancement under § 2L1.2(b)(1)(C) because the Wyandotte County conviction for automobile burglary is considered an aggravated felony. The Government argues that in Defendant's prior 2012 Unlawful Reentry Following Deportation case, his automobile burglary conviction was considered an aggravated felony and he did not object.[7]

         II. Discussion

         Defendant argues that use of the 2016 U.S.S.G. violates the ex post facto clause because its use results in a higher Guidelines sentencing range. The general rule is that the Court shall use the U.S.S.G. Manual in effect on the date that the defendant is sentenced.[8] However, an ex post facto violation occurs when “a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.”[9] The 2016 U.S.S.G. became effective on November 1, 2016. Defendant committed the instant offense on February 16, 2016, so the 2015 U.S.S.G. was in effect on the date he committed his criminal act. Thus, if the 2016 U.S.S.G. resulted in a higher Guideline sentencing range as Defendant suggests, the 2015 U.S.S.G. should be applied.

         The issue is whether the 2015 U.S.S.G. results in a lesser Guideline sentencing range than the 2016 U.S.S.G. The provisions at issue in the 2016 and 2015 U.S.S.G. read as follows:

U.S.S.G. year

U.S.S.G. section

Provision

2015

§ 2L1.2(b)(1)(C)

If the defendant previously was deported, or unlawfully remained in the United States, after a conviction for an aggravated felony, increase by 8 levels.

§ 2L1.2(b)(1)(D)

If the defendant previously was deported, or unlawfully remained in the United States, after a conviction for any other felony, increase by 4 levels.

2016

§ 2L1.2(b)(1)(A)

If the defendant committed the instant offense after sustaining a conviction for a felony that is an illegal reentry offense, increase by 4 levels.

§ 2L1.2(b)(2)(D)

If, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained, a conviction for any other felony offense (other than an illegal reentry offense), increase by 4 levels.

         Defendant's base offense level is 8.[10] Under the 2016 U.S.S.G., Defendant has essentially conceded the applicability of the four-level enhancement in § 2L1.2(b)(1)(A) for sustaining a conviction for illegal reentry and the four-level enhancement in § 2L1.2(b)(2)(D) for sustaining a conviction for any other felony offense. Thus, under the 2016 U.S.S.G, his undisputed adjusted offense level would be 16.

         Under the 2015 U.S.S.G., Defendant has conceded the applicability of the four-level enhancement in § 2L1.2(b)(1)(D) for sustaining a conviction for any other felony. Defendant challenges the applicability of the eight-level enhancement in § 2L1.2(b)(1)(C) for sustaining a conviction for an aggravated felony under the 2015 U.S.S.G. Defendant argues his 2009 Kansas state conviction for automobile burglary is not considered an aggravated felony. Thus, Defendant argues under the 2015 U.S.S.G, his adjusted offense level would be 12.

         The Government argues that his 2009 Kansas state conviction for automobile burglary is an aggravated felony. Thus, the Government argues under the 2015 U.S.S.G, his adjusted offense level would be 16, like under the 2016 U.S.S.G. The Court must determine whether Defendant's 2009 Kansas state automobile burglary conviction is an aggravated felony for purposes of § 2L1.2(b)(1)(C) of the 2015 U.S.S.G.

         For purposes of § 2L1.2(b)(1)(C) of the 2015 U.S.S.G., “aggravated felony” has the meaning given that term in § 1101(a)(43) of the Immigration and National Act (“INA”) (8 U.S.C. § 1101(a)(43)) without regard to the date of conviction for the aggravated felony.[11] In INA § 1101(a)(43)(G), aggravated felony includes a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment was at least one year. Thus, INA § 1101(a)(43)(G) refers to the generic offenses, which means it refers to those offenses as they are generally committed.[12]

         1. Categorical or Modified Categorical Approach

         When a defendant contests whether his prior conviction is an “aggravated felony, ” the Court must use the categorical approach.[13] The categorical approach looks only to the fact of conviction and the statutory definition of that offense.[14] However, if the statute involves conduct which may or may not encompass conduct constituting an aggravated felony, the modified categorical approach allows the district court to “look to the charging paper and judgment of conviction” to determine if the actual offense the defendant was convicted of qualifies as an aggravated felony.[15] The purpose of this modified categorical approach “is to enable the sentencing court to identify those facts that necessarily supported a prior conviction, ” including “whether the jury necessarily had to find, or the defendant necessarily admitted, facts” satisfying the definition or elements of the offense for which an enhancement may be given.[16] The modified categorical approach applies whenever a statute of conviction is ambiguous because it “reaches a broad range of conduct, some of which merits an enhancement and some of which does not.”[17]

         Turning to the statute at issue, K.S.A. § 21-3715 reads:

         Burglary is knowingly and without authority entering into or remaining within any:

(a) Building, manufactured home, mobile home, tent or other structure which is a dwelling, with intent to commit a felony, theft or sexual battery therein;
(b) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein; or
(c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a ...

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