On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. No. 02-cr-31-1) District Judge: Honorable J. Curtis Joyner
Before: Sloviter, Ambro, and Becker,
The opinion of the court was delivered by: Becker, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) June 23, 2003
Jose Antonio Frias pleaded guilty in the District Court to a charge of unlawful re-entry to the United States after deportation. 8 U.S.C. § 1326. Section 2L1.2(b) of the United States Sentencing Guidelines requires a substantial sentencing enhancement when an alien is convicted of illegally returning to, or remaining in, the United States after the commission of a felony drug trafficking offense. Frias had been convicted in Pennsylvania for such an offense — distributing cocaine — and was sentenced to 11 to 23 months of imprisonment but was paroled shortly after completion of his minimum sentence. Over Frias's objection, the District Court applied the 16 level enhancement in § 2L1.2(b) because it concluded that the term "sentence imposed" in the Guideline means the maximum term of imprisonment in the sentence, which was 23 months.
Frias argues that "sentence imposed" should be construed as the time the alien actually served. For support he looks to Application Note 1(A)(iv) which provides that if any portion of a "sentence of imprisonment was probated, suspended, deferred, or stayed, 'sentence imposed' refers only to the portion that was not probated, suspended, deferred or stayed." The Government contends that the plain language of the Application Note excludes sentences that were paroled, and that the history of the November 2001 amendment to § 2L1.2(b) reflects that the Sentencing Commission considered the "time served" approach and rejected it in favor of the current formulation. Further, the Government notes that federal criminal law generally regards the sentence imposed as meaning the maximum term of incarceration, and that such a definition is used in U.S.S.G. § 4A1.2, the section of the Guidelines concerning the criminal history of recidivists.
We find the Government's interpretation of "sentence imposed" in § 2L1.2(b) to be persuasive. We are satisfied that the District Court correctly construed this term as meaning the maximum term of imprisonment in an indeterminate sentence. We will therefore affirm the judgment.
Frias is a native of the Dominican Republic. On May 20, 1999, he was convicted in Pennsylvania state court for distributing cocaine and was sentenced to a term of 11 to 23 months incarceration. The court ordered that Frias serve his sentence in county prison, and that upon the completion of the minimum sentence he "shall be released without a petition upon approval of a suitable parole plan" by the county parole office. After having served slightly less than a year in prison, he was paroled. The Immigration and Naturalization Service then commenced deportation proceedings based on the felony conviction, and Frias was deported from the United States in July 2000.
Acting on a tip, INS agents arrested Frias on January 13, 2002 in Reading, Pennsylvania. He had not received permission to re-enter the United States after his deportation. A grand jury empaneled in the Eastern District of Pennsylvania returned an indictment charging Frias with one count of illegal entry after deportation in violation of 8 U.S.C. § 1326. Frias pleaded guilty to the charge. Section 2L1.2 of the Sentencing Guidelines applies to convictions under § 1326 and provides significant sentencing enhancements if the alien was deported after a conviction for drug trafficking. As amended in November 2001, § 2L1.2(b)(1) provides in relevant part:
If the defendant previously was deported, or unlawfully remained in the United States, after —
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months... increase by 16 levels;
(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or ...