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Prior state court sentence was an aggravated felony but dissent disagreed

In U.S. v. Garza-Mendez, the defendant pleaded guilty to the federal crime of reentry after deportation by an aggravated felon in violation of 8 U.S.C. §1326(a). His deportation resulted from a prior conviction under a Georgia-family-violence-battery statute for striking his girlfriend. In that case, he was sentenced to confinement to 12 months, but the state judge gave him credit for 30 hours of time served and permitted him to spend the rest of his sentence on probation. Prior to his sentencing, Garza-Mendez sought clarification of his sentence from the Georgia court and Judge Pamela Smith issued a clarification order stating that Garza-Mendez was sentenced to 12 months of probation with the first 30 hours to be served in custody. The clarification stated that “the court did not sentence Defendant to 12 months of incarceration.” The judge who issued the clarification was not the same judge that sentenced him five years earlier. At his federal sentencing for the reentry offense, Garza-Mendez argued that the clarification order showed that he had not been sentenced to 12 months of imprisonment and that he should not receive an 8-level increase in guidelines under USSG § 2L12(b)(1)(C) for the prior Georgia conviction. The district court denied his objection and gave him the increase. The district judge also denied his request for a variance for cultural assimilation and imposed a reporting requirement from Mexico as a special condition of his supervised release. He appealed the 8-level increase, the denial of cultural assimilation and the reporting requirement.

In this appeal he argued that he should not have an 8-level increase because the sentence was not 12 months of confinement. Under USSG § 2L12(b)(1)(C) a defendant who was previously deported defendant and has a conviction for an aggravated felony is subject to the 8-level increase. An aggravated felony is defined as a crime of violence in which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43). The the majority of this panel disagreed for several reasons. First, it found that the state judge who issued the clarification order was not the sentencing judge. Second, the state judge did nothing more than review Garza-Mendez’s August 30, 2007 sentence to issue the clarification order. Third, the August 30, 2007 sentence was clear that Garza-Mendez’ was sentenced to 12 months of confinement. The court pointed to a prior Eleventh Circuit case, U.S. v. Guzman-Bera, which held that a term of imprisonment includes the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. The court determined that the issue involves interpretation of the sentencing guidelines and a federal judge is in a better position to interpret the effect the state sentence order has on the Garza -Mendez’ federal sentence.

The defendant made a cultural assimilation departure argument pursuant to USSG § 2L1.1 arguing that his parents brought him when he was 7 to the United States, learned English and attended schools in Atlanta. The district court’s reasoned that his poor criminal record, both before and after his deportation, had outweighed the other 3553(a) factors and the court of appeals upheld the district court’s decision.

The dissent strongly criticized the majority for failing to show deference and comity to the state court in a case where it would benefit the defense. “This case of course presents one of the rare instances in which showing deference and comity to the State Court would benefit a federal defendant. But here, in contrast to our usual practice, the Majority shows no comity and no deference to an order of the State Court clarifying the terms of the sentence that it imposed on Mr. Garza-Mendez. The majority’s refusal to credit the State Court’s clarification of its own sentence is perplexing, especially given that, in my experience, we do not scrutinize State Court judgments in the same way when they result in harsher sentence for criminal defendants.”