§2L1.2 Enhancement for Unlawfully Remaining In U.S. Following Certain Convictions Applies Only If a Removal Order Was Issued or Reinstated After Such a Conviction (Even If Not in Response to It)

United States v. Nevares-Bustamante, No. 10-31110 (5th Cir. Jan. 25, 2012) (Higginbotham, Stewart; Haynes, specially concurring)

Let's say an alien is deported a couple of times (both times following convictions of aggravated felonies), returns again to the United States, is convicted of rape in state court and sentenced to prison, is released from prison without the Border Patrol being notified and without any removal order having been issued or reinstated following his most recent reentry, and is arrested about a year later while still in the United States? Does the new conviction trigger an enhancment under guideline §2L1.2(b)(1)?

These are, of course, the facts of and question presented in Nevares-Bustamante. The question arises because §2L1.2(b)(1) provides for a range of enhancments not only if a defendant was removed after having been convicted of various offenses, but also if he "unlawfully remained in the United States" after such. That would seem to be the end of it, as Nevares did remain in the United States unlawfully after his release from state prison. But that's not the end of it. Application Note 1(A)(iii) explains that,

A defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction.

As it turns out, the First Circuit has already done the heavy lifting here:

In that case [United States v. Sanchez-Mota], the defendant was deported, illegally returned to the United States, and was subsequently convicted of an aggravated felony. Just as in this case, he completed his sentence, was released from custody, and a few months later was arrested and charged with illegal reentry. The Government argued in that case that the defendant “unlawfully ‘remained’ in the United States after his conviction,” reasoning that “his initial deportation could serve as the basis for unlawfully remaining in the country subsequent to his [aggravated felony] conviction because 8 U.S.C. § 1326(a) constitutes a continuing offense.” The First Circuit rejected that argument, holding that the sentencing enhancement did not apply. It reasoned that the Government’s reading eliminated any temporal limitations in § 2L1.2, so that “it wouldn’t matter whether the [relevant] removal occurred precedent to or subsequent to the conviction. So long as the defendant had been previously deported, he would face a sentencing enhancement if he committed an aggravated felony.” The First Circuit further explained that the application note to § 2L1.2 suggests that the enhancement would apply “at most, to an alien who (a) commits an aggravated felony, (b) is then subject to an order of deportation or removal, and (c) doesn’t depart but instead remains in the United States unlawfully.” In contrast, that defendant, like Nevares-Bustamante, “(a) was removed, (b) returned illegally, and (c) was convicted of [the qualifying offense].” Under the First Circuit’s reasoning, the defendant’s multiple prior deportations made no difference; the deportation orders prior to his qualifying conviction did not make his subsequent presence in the United States “unlawful” for the purposes of this Guidelines provision. Without a fresh removal order or reinstatement of a prior removal order, the court concluded, the defendant did not “unlawfully remain[] in the United States following a removal order issued after a conviction.” We find the First Circuit’s reasoning persuasive, and we adopt it here.

The Government had argued that the application note's reference to "a" conviction "means that any prior conviction could serve to predate the removal order, even if it’s not the qualifying conviction." The court rejected this argument, as it

robs any meaning from the arguably more important word “remain,” at least as applied to Nevares-Bustamante. What could it mean to “unlawfully remain[] in the United States . . . following a removal order” if the defendant was in fact removed pursuant to that order? Nevares-Bustamante did leave the United States each time he was ordered removed. To say that he “unlawfully remained” here because he came back later deprives the word “remain” of its natural meaning.

Okay, you may have noticed that Judge Haynes concurred specially. Why? As you can see, the explanation in the application note isn't the most obvious interpretation of the literal language of the guideline itself. Which brings up Stinson v. United States, which held that a guideline's commentary is "authoritative unless 'inconsistent with, or a plainly erroneous reading of' the Guideline." So, queries Judge Haynes, is it?

I conclude that it is not. As construed by the majority opinion, the application note provides a definition of “unlawfully remained” that is consonant with the Guideline, objective, and relatively easy to verify. Requiring the issuance or reinstatement of a removal order also avoids the necessity of mining the murky depths of immigration law to determine the “unlawfulness” of a defendant’s “remaining.” As such, I cannot find the application note to be “inconsistent” or “plainly erroneous,” although I do find it somewhat conceptually incongruous with a commonsense understanding of what it means to “unlawfully remain in the United States” after a conviction. Mindful of Stinson’s teaching, however, I am obliged to concur in the majority’s opinion.