Probation Revocation Should Not Be Calculated in Sentence Imposed

A new amendment to the U.S. Sentencing Guidelines could mean less jail time for your client.

Vacating a sentence for illegal reentry and remanding, a Ninth Circuit panel held on Monday that a November 1, 2012, amendment to the Sentencing Guidelines clarified, rather than altered, existing law in providing that a probation revocation sentence served after deportation should not be used to calculate a "sentence imposed."

In 2007, Moises Vasquez Catalan was convicted of possession for sale of a controlled substance in violation of California law. A state judge sentenced him to serve 180 days in jail followed by 36 months probation. As soon as Catalan completed his jail sentence, he was deported to Mexico.

Catalan later entered the U.S. illegally. California police eventually arrested Catalan for driving without a license. A court sentenced him to 60 days in jail for providing a false name to police. At the time, Catalan was still on probation for his 2007 drug trafficking offense.

While Catalan was in jail, the state court revoked his probation and sentenced him to serve an additional 360 days. After Catalan completed his sentence, he was transferred to federal custody. He pleaded guilty to illegal reentry.

U.S.S.G. Section 2L1.2(b)(1) provides for a 16-level enhancement if "the defendant previously was deported ... after ... a conviction for a felony that is ... a drug trafficking offense for which the sentence imposed exceeded 13 months." If the sentence imposed for a drug trafficking offense was 13 months or less, a 12-level enhancement applies.

Catalan argued that the "sentence imposed" included only his 180-day sentence imposed prior to deportation, and not the 360-day sentence imposed when the state court revoked his probation following his illegal reentry. But the district court held that the "sentence imposed" included the probation revocation sentence Catalan served after his deportation and subsequent illegal reentry. Thus, the court found that Catalan's sentence exceeded 13 months and applied the 16-level enhancement.

The court sentenced Catalan to 27 months in prison.

The Sentencing Commission recently clarified that a probation revocation sentence served after deportation should not be used to calculate the "sentence imposed" under U.S.S.G. section 2L1.2(b)(1). Applying this amendment retroactively, the Ninth Circuit vacated Catalan's sentence and remanded his case for resentencing.

Related Resources:

• U.S. v. Catalan (Ninth Circuit Court of Appeals)
• Can You Challenge a Vacated Removal Order? (FindLaw's Second Circuit Blog)
• Ninth Circuit Denies En Banc Rehearing in Pink Underwear Lawsuit (FindLaw's Ninth Circuit Blog)