US v. Hernandez Martinez, No. 17-50026 (9-15-17)(Ikuta w/Fletcher & Barker).  This is a significant 1326 sentencing case under the 2016 amended  2L1.2 guidelines.  The 9th holds that the enhancement for 2L1.2(b)(2)(B) will depend on the sentence imposed before the first order of deportation/removal. The 9th joins the 5th in this interpretation. (Note that the Az district courts have been taking a contrary position).

The defendant was convicted of a felony in 2003 (lewd acts with a child). The state sentenced him to one year and five years of probation.  The defendant was then deported.  He returned without authorization, and faced a probation violation.  He received three years.  He was then deported.  In 2016, he was in the United States again, got another state sentence (a misdemeanor) and a 1326 charge.  The court applied the amended 2016 guidelines, and gave him an adjustment because his prior felony was imposed before he was deported. The adjustment was +8 levels because the court characterized the sentence as being more than 2 years. The defendant argued in court, and on appeal, that the state conviction did not trigger the +8 enhancement because he was sentenced to only a year of prison before his first deportation.  The issue is:  how to calculate the sentence length.

The 9th holds that under 2L1.2(b)(2)(B) the qualifying sentence must be imposed before the first deportation.  The 9th reasoned that the 2016 amendment is best read as continuing the Commission's prior interpretation of when first imposed.  The 9th examined the policy statements, and history of various amendments, especially the 2012 amendment, which had clarified that sentence imposed before deportation is what counts.  The 2016 amendment introduces ambiguity, but to the 9th's mind, did not reverse the prior clarification.  The 9th looked at the text which closely matches the 2012 amendment; any change was necessary for other reasons, and there was no suggestion of adopting the previous minority, and rejected, position. Finally, the 9th embraces the 5th's interpretation along the same lines.

As the 9th states:    "We conclude that when viewed in its historical context, the amended [] 2L1.29b)(2)(B) is best read as carrying forward the Commission's prior, unambiguous conclusion that a qualifying sentence must be imposed before the defendant's first order of deportation or removal." P. 14.

In so writing, the 9th also drops a footnote declining the government's request to use the interpretation set forth in  a "Primer on the Immigration Guidelines" published by the USSC.  The 9th comments that the Primer expressly disavows any authority to represent the official position; and most telling, "its unreasoned interpretation lacks persuasive power." P. 14-15, n.2.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/15/17-50026.pdf