Appeal from the United States District Court for the Southern District of California. D.C. No. CR-92-00036-02-MLH. Marilyn L. Huff, District Judge, Presiding.
Before: Mary M. Schroeder, Betty B. Fletcher and David R. Thompson, Circuit Judges. Opinion by Judge Thompson.
Mario Moreno-Hernandez appeals his sentence following his convictions for conspiracy to transport aliens, in violation of 18 U.S.C. § 371 (count 1); two counts of transporting illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(B) (counts 2 and 3); and being an alien found in the United States after a felony conviction and subsequent deportation, in violation of 8 U.S.C. § 1326(b)(1) (count 4). He contends the district court improperly enhanced his sentence on count 4 based on the fact that he reentered the United States after having been deported following conviction of an aggravated felony. He contends this offense was neither charged nor proved at trial. He also challenges the district court's order that his previously concurrent sentences run consecutively. Finally, he argues that his sentences on counts 1-3 should be reduced because they exceed the United States Sentencing Guidelines (the guidelines) range applicable to those crimes.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Moreno-Hernandez was tried by a jury and convicted on all four counts. The district court originally sentenced him to 60 months imprisonment on each of counts 1-3, conspiracy to smuggle and smuggling illegal aliens; and 125 months on count 4, being an alien found in the United States after deportation following a felony conviction. The terms of imprisonment were to be served concurrently, and to be followed by a three-year term of supervised release on each count, also to run concurrently.
Moreno-Hernandez appealed to this court, and we, in an unpublished opinion, affirmed his conviction but vacated his sentence and remanded his case to the district court for resentencing. United States v. Moreno-Hernandez, No. 92-50573, (9th Cir. July 26, 1993). We noted that, although Moreno-Hernandez had been deported after convictions for two aggravated felonies involving trafficking in narcotics, and thus could have been charged with violating 8 U.S.C. § 1326(b)(2), the indictment actually charged him only with violating 8 U.S.C. § 1326, with no reference to any subsection. He stipulated at trial only to deportation following a felony conviction, the government did not prove that felony was an aggravated felony, and the jury was not instructed on the added element of aggravation. In these circumstances, we concluded Moreno-Hernandez was convicted under section 1326(b)(1), reentry after deportation for committing a simple felony, and he could not be sentenced for a violation of that statute to a term of imprisonment in excess of that statute's five-year maximum.*fn1
On remand, the district court resentenced Moreno-Hernandez to 60 months imprisonment for the violation of 8 U.S.C. § 1326(b)(1) - count 4 - but, based on guidelines §§ 2L1.2(b)(2) and 5G1.2(d) (Nov. 1991), ordered his sentence on that count to be served consecutively to, rather than concurrently with, the 60-month concurrent sentences imposed on counts 1-3.*fn2 The total restructured period of incarceration was 120 months - a term substantially similar to the 125-month sentence we vacated on the first appeal.
We review de novo the legality of a criminal sentence, as well as a district court's interpretation of the Sentencing Guidelines. United States v. Guzman-Bruno, 27 F.3d 420, 422 (9th Cir.), cert. denied, 115 S. Ct. 451 (1994); United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir. 1994).
A. Sentence Enhancement under § 2L1.2(b)(2)
Moreno-Hernandez contends the district court erred when it increased his offense level on count 4 pursuant to § 2L1.2(b)(2) of the guidelines, and sentenced him on that count to the five-year maximum provided by 8 U.S.C. § 1326(b)(1). He argues this was impermissible because the court accomplished ...