by Sarah Walton

On May 14, 2015, the Fourth Circuit issued a published opinion in the criminal case of United States v. Bercian-Flores. The court held that the defendant’s prior conviction of transporting illegal aliens was punishable “by imprisonment for a term exceeding one year” and therefore qualified as an aggravating felony under Federal Sentencing Guideline § 2L1.2(b)(1)(A)(vii) (“USSG”). As a result, the Fourth Circuit upheld the district court’s twelve-point enhancement of the defendant’s sentence.

The District Court Denied Bercian-Flores’ Objection to the Twelve-Point Enhancement

In 1997, Defendant Jose Bercian-Flores (“Bercian-Flores”) pled guilty in the United States District Court for the Southern District of Texas (“Texas Court”) to transportation of an illegal alien pursuant to 8 U.S.C. § 1324(a)(1)(A)(ii). The statutory maximum for this offense was five years imprisonment, but the USSG calculated confinement between zero and six months. The Texas Court sentenced Bercian-Flores to 107 days’ imprisonment and he was subsequently removed to El Salvador in August 1997.

In May 2012, Bercian-Flores was charged in Mecklenburg County, North Carolina with Reentry of a Removed Alien under 8 U.S.C. § 1326. He subsequently pled guilty. The initial presentence report, in accordance with the USSG, suggested an eight-level sentencing enhancement due to Bercian-Flores’ aggravating felony offense of transporting illegal aliens. An aggravating felony offense is punishable by more than one year in prison.

Bercian-Flores objected to the presentence report. He argued that his prior offense did not qualify as an felony because his sentence did not exceed one year. The district court overruled the objection, stating that the statutory maximum of five years, rather than the USSG, controlled the inquiry. As a result, the district court held that Bercian-Flores’ prior offense was an aggravating felony, thereby warranting a twelve-point sentencing enhancement.

            Bercian-Flores’ Argued that the District Court Erred Because the USSG, Rather than the Statutory Maximum, Controlled the Texas Court’s Decision in 1997

On appeal, Bercian-Flores argued that under United States v. Simmons, the statutory maximum was not controlling because the USSG guidelines in 1997 (“1997 Guidelines”) were mandatory, rather than advisory. Bercian-Flores further contended that because the Texas Court was obligated under the 1997 Guidelines to sentence him to less than one year in prison, his offense did not qualify as a felony. Thus, the question before the Fourth Circuit was whether the Texas Court was completely bound by the 1997 Guidelines, thereby leaving the court with no discretion to impose a sentence that would qualify as a felony.

The Fourth Circuit Rejected Bercian-Flores’ Argument

The Fourth Circuit recognized that judges could depart from the 1997 Guidelines in very limited circumstances. Bercian-Flores likened the 1997 Guidelines to the North Carolina Structured Sentencing Act, which did not allow judges to depart from the recommendation set forth in the Act under any circumstances. The Fourth Circuit rejected Bercian-Flores’ argument for two reasons. First, the court was bound by the Supreme Court’s decision in United States v. Rodriquez. In Rodriquez, the Court held that statutory law, rather than the USSG, determined the maximum sentence for imprisonment. Second, the Fourth Circuit reasoned that unlike the North Carolina Structured Sentencing Act, judges could, in certain circumstances, depart from the 1997 Guidelines. As a result, the court held that the statutory maximum of five years, rather than the USSG, determined whether Bercian-Flores’ prior offense qualified as a felony.

The Fourth Circuit Affirmed the District Court’s Holding

The Fourth Circuit affirmed the district court’s holding that Bercian-Flores’ prior offense should be measured by statutory guidelines and was therefore punishable by “imprisonment exceeding one year.” As a result, Bercian-Flores’ prior offense constituted an aggravating felony, thereby warranting a twelve-point sentencing enhancement.