US v. Jose Bercian-Flore

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cr-00208-FDW-1. [999583265]. [13-4504]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4504

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE GEOVANI BERCIAN-FLORES, a/k/a Jose Jeovany BercianFlores, a/k/a Jose Geovani Flores-Mendosa, a/k/a Napolean
Villalta,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:12−cr−00208−FDW−1)
Argued:

January 29, 2015

Decided:

May 14, 2015

Before DUNCAN, WYNN, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Duncan and Judge Thacker joined.
ARGUED: Richard Lamb Brown, Jr., LAW OFFICES OF RICHARD L.
BROWN, JR., Monroe, North Carolina, for Appellant.
Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
ON BRIEF: Anne M. Tompkins,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.

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WYNN, Circuit Judge:
Defendant
the

United

district

Jose

States

court

Bercian-Flores
as

an

imposed

Bercian-Flores’s

1997

illegal
a

pled
alien.

twelve-level

felonious

guilty
At

to

re-entering

sentencing,

enhancement

conviction

for

based

the
on

unlawfully

transporting aliens, which the district court determined was an
“offense punishable by imprisonment for a term exceeding one
year” under the U.S. Sentencing Guidelines.

U.S.S.G. § 2L1.2

cmt. n.2.
On appeal, Bercian-Flores argues that this Court’s ruling
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc), precludes the enhancement because the Guidelines range
for

his

1997

conviction

under

the

then-mandatory

Guidelines was zero to six months’ imprisonment.

Sentencing
Because the

judge who sentenced Bercian-Flores in 1997 had discretion to
sentence him for up to five years, we conclude that the district
court did not err in imposing the enhancement.

I.
In 1997, Bercian-Flores pled guilty to transportation of an
alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) in the United
States District Court for the Southern District of Texas.
offense

carried

imprisonment.

a
See

statutory
8

U.S.C.
2

five-year
§§

maximum

term

1324(a)(1)(A)(ii)

The
of
and

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(a)(1)(B)(ii).

However,

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the

Guidelines

range

for

Bercian-

Flores’s 1997 conviction was calculated as zero to six months,
and he was sentenced to only 107 days’ imprisonment.

Bercian-

Flores was removed to El Salvador on August 27, 1997.
Over

a

decade

later,

in

May

2012,

Bercian-Flores

was

arrested in Mecklenburg County, North Carolina and charged with
being

found

subsequent

to

in

the

the

United

commission

States
of

U.S.C. §§ 1326(a) and (b)(1).

a

following

felony

in

his

removal

violation

of

8

He pled guilty to the charge

without entering into a plea agreement.
The probation office prepared a Presentence Report (“PSR”),
which calculated a base offense level of eight and recommended a
twelve-level

enhancement

2L1.2(b)(1)(A)(vii)

pursuant

(“Unlawfully

to

Entering

or

U.S.S.G.
Remaining

§

in

the

United States”) based on Bercian-Flores’s 1997 alien-smuggling
conviction.

Bercian-Flores

raised

objections

to

the

PSR,

arguing that based upon this Court’s decision in Simmons, his
1997

conviction

U.S.S.G. §

did

not

2L1.2(b)(1)

constitute
because

he

a

felony

could

not

for

purposes

have

received

of
a

sentence of more than one year under the mandatory Sentencing
Guidelines

in

effect

in

1997.

The

district

court

denied

Bercian-Flores’s objection, reasoning that Simmons had expressly
distinguished North Carolina’s legislatively mandated sentencing
regime from a guidelines system.
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The

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district

court

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therefore

held

that

Bercian-Flores’s

statutory maximum sentence, a five-year term of imprisonment, as
opposed

to

his

Guidelines

imprisonment, controlled.

range,

zero

to

six

months

of

After crediting Bercian-Flores with a

three-level reduction for acceptance of responsibility, leaving
him

with

an

Guidelines
district

offense

range
court

imprisonment.

of

level

of

seventeen

twenty-seven

sentenced

to

and

a

thirty-three

Bercian-Flores

to

recommended
months,

thirty

the

months’

Bercian-Flores appealed.

II.
The

U.S.

Sentencing

Guidelines

prescribe

a

twelve-level

enhancement for defendants who unlawfully re-enter the United
States “after . . . a conviction for a felony that is . . . an
alien smuggling offense.”
Guidelines
offense
year.”
district

define

punishable

“felony”
by

U.S.S.G. § 2L1.2(b)(1)(A)(vii).
as

“any

imprisonment

federal,
for

a

state,

term

Guidelines de novo.

interpretation

of

the

local

exceeding

U.S.S.G. § 2L1.2 cmt. n.2 (emphasis added).
court’s

or

The

U.S.

one

We review a
Sentencing

United States v. McManus, 734 F.3d 315, 318

(4th Cir. 2013).

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III.
Bercian-Flores
imposing

the

argues

twelve-level

2L1.2(b)(1)(A)(vii)
punishable

by

Specifically,

that

a

because
term

of

the

district

enhancement
his

1997

imprisonment

Bercian-Flores

contends

court

in

U.S.S.G.

under

erred

§

conviction
exceeding

that

the

was

not

one

year.

district

court

did not have authority to sentence him to more than six months
because the Guidelines range for his 1997 conviction was zero to
six months, and in 1997 the Guidelines were mandatory.
United States v. Booker, 543 U.S. 220, 233 (2005).

See

Bercian-

Flores analogizes the pre-Booker Sentencing Guidelines to the
North Carolina Structured Sentencing Act at issue in Simmons.
He argues that the top sentence in his pre-Booker Guidelines
range should guide our analysis of whether his 1997 conviction
constitutes

a

felony

for

purposes

of

U.S.S.G.

§

Bercian-Flores

was

2L1.2(b)(1)(A)(vii).
A.
Under
sentenced

the

sentencing

in

1997,

mandatory.

the

regime
U.S.

in

which

Sentencing

Guidelines

were

See Booker, 543 U.S. at 233 (“The Guidelines as

written . . . are not advisory; they are mandatory and binding
on all judges.”).
to

district

However, the Guidelines did give discretion

courts

to

depart

upward

from

Guidelines range under certain circumstances.
5

the

applicable

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Specifically, U.S.S.G. § 5K2.0 (1997) enabled a sentencing
judge to “impose a sentence outside the range established by the
applicable

guideline”

circumstance

not

if

adequately

the

judge

taken

found

into

an

aggravating

consideration

Sentencing Commission in formulating the Guidelines.

by

the

Guideline

5K2.0 further provided that such circumstances “[could not], by
their very nature, be comprehensively listed and analyzed in
advance,”

and

that

the

“[p]resence

of

any

such

factor

may

warrant departure from the guidelines . . . , in the discretion
of

the

sentencing

court.”

Id.

Additionally,

findings

warranting an upward departure need not have been found by a
jury or pled to by the defendant; rather a sentencing judge had
discretion to depart upwards from the Guidelines range so long
as the judge found aggravating facts by a preponderance of the
evidence.
Cir.

2005)

See United States v. Morris, 429 F.3d 65, 72 (4th
(recognizing

that,

both

before

and

after

Booker,

decisions about sentencing factors are made by judges on the
preponderance

of

the

evidence)

(citing

McReynolds

v.

United

States, 397 F.3d 479, 481 (7th Cir. 2005)).
B.
In the case upon which Bercian-Flores principally relies,
United States v. Simmons, 649 F.3d 237, we considered under what
circumstances a prior North Carolina conviction was punishable

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by a prison term exceeding one year. 1
the

North

Carolina

Structured

649 F.3d at 239.

Sentencing

Act,

Under

sentences

were

contingent on two factors: 1) the designated “class of offense”
and 2) the offender’s “prior record level.”
of

those

factors

was

established

by

Id. at 240.

statute.

Once

a

Each
judge

determined the defendant’s prior record level, the defendant was
then sentenced pursuant to a “statutory table, which provides
three

possible

sentencing

presumptive

range,

presumptive

range

and

an

governed

ranges—a

mitigated
range.”

aggravated
unless

the

range,
Id.

judge

made

a
The

written

findings that identified specific factors designated by the Act
that permitted a departure to the aggravated or mitigated range.
Id.
Notably, under the Structured Sentencing Act, “[a] judge
may

select

from

the

aggravated

range

only

if

the

State

has

provided a defendant thirty-days’ notice of its intent to prove
the necessary aggravating factors and a jury has found beyond a
reasonable doubt (or the defendant has pled to) the existence of
1

Our task in Simmons was to determine whether Simmons’s
prior North Carolina conviction constituted a “felony drug
offense” under the Controlled Substances Act (“CSA”), which
mandates a term of imprisonment of at least ten years if the
offense conduct occurred “after a prior conviction for a felony
drug offense has become final.”
21 U.S.C. § 841(b)(1)(B).
Similarly to the Guideline at issue in this case, the CSA
defines “felony drug offense” as a drug-related “offense that is
punishable by imprisonment for more than one year.” 21 U.S.C. §
802(44).
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those factors.”
range,

the

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Id.

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Once the judge identified the appropriate

Structured

Sentencing

Act

required

choose a sentence from within that range.

Id.

the

judge

to

While the judge,

“[i]n rare cases” could impose a lesser sentence upon a finding
of

“extraordinary

discretion

to

mitigating

impose

extraordinary cases.”

a

factors,”

more

the

severe

judge

had

sentence

“no

even

in

Id. at 240 n.2 (emphasis added).

Before Simmons, when assessing whether a defendant’s prior
North Carolina offense was punishable by a prison term greater
than one year we looked to “the maximum aggravated sentence that
could be imposed for that crime upon a defendant with the worst
possible criminal history.”
242, 246 (4th Cir. 2005).

United States v. Harp, 406 F.3d
However, the Supreme Court’s 2010

decision in Carachuri–Rosendo v. Holder, 560 U.S. 563 (2010),
led us to reconsider that approach.
In Carachuri, the Supreme Court examined a provision of the
Immigration and Nationality Act that permitted an alien to seek
cancellation of removal where he “has not been convicted of any
aggravated

felony.”

8

U.S.C.

§

1229b(a)(3).

Aggravated

felonies as defined by the Act were limited to crimes for which
the “maximum term of imprisonment authorized” is “more than one
year.”
3559(a)).

Carachuri,
Carachuri

560
had

U.S.

at

received

567

(quoting

a

twenty–day

18

U.S.C.

sentence

§
for

possessing less than two ounces of marijuana in violation of
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Texas law and a ten–day sentence for possessing a Xanax without
a prescription.

The government argued that, hypothetically, had

Carachuri faced federal prosecution for that offense, he could
have been sentenced to two years’ imprisonment.
government

contended

that

his

offense

was

Therefore, the
“punishable”

by

imprisonment for more than one year.
The
Focusing

Supreme
on

the

Court

unanimously

INA’s

use

of

the

rejected
phrase

this

argument.

“convicted

of

a[n]

aggravated felony,” the Supreme Court reasoned that the “text
thus indicates that we are to look to the conviction itself as
our starting place.”
conduct

underlying

hypothetically
irrelevant.
for

was

could

defendant’s

have

received

whether

simply

In other words, whether the

the

See id. at 576–81.

determining

felony

Id. at 576.

a

whether

felony

conviction

treatment

was

Thus the dispositive question

defendant
he

prior

was

committed

actually

an

aggravated

convicted

of

an

offense punishable by more than one year in prison.
Applying this reasoning in Simmons, we held that a prior
North

Carolina

conviction

was

punishable

by

imprisonment

exceeding one year only if the particular defendant’s crime of
conviction was punishable under North Carolina law by a prison
term exceeding one year.

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C.
Bercian-Flores

likens

the

pre-Booker

U.S.

Sentencing

Guidelines to the Structured Sentencing Act, and contends that
under Simmons, his 1997 conviction was not punishable by a term
of

imprisonment

exceeding

one

year

because

the

top

of

his

mandatory Guidelines range for that conviction was six months.
Bercian-Flores’s argument has some intuitive appeal.

In

many ways, the pre-Booker U.S. Sentencing Guidelines were no
less mandatory than North Carolina’s Structured Sentencing Act.
See, e.g., Mistretta v. United States, 488 U.S. 361, 391 (1989)
(“[T]he Guidelines bind judges and courts in the exercise of
their uncontested responsibility to pass sentence in criminal
cases.”).

While

sentencing

judges

had

discretion

to

depart

upwards from a Guidelines range, in Booker the Supreme Court
characterized that discretion as exceedingly narrow:
At first glance, one might believe that the ability of
a district judge to depart from the Guidelines means
that she is bound only by the statutory maximum. . . .
Importantly, however, departures are not available in
every case, and in fact are unavailable in most.
In
most cases, as a matter of law, the Commission will
have adequately taken all relevant factors into
account, and no departure will be legally permissible.
In those instances, the judge is bound to impose a
sentence within the Guidelines range.
543 U.S. at 234.
Bercian-Flores contends that the judge who sentenced him
for his 1997 alien smuggling conviction found no aggravating

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factors that warranted an upward departure from the Guidelines
range and, therefore, was no less “bound to impose a sentence
within the Guideline range,” which in his case was less than one
year.

Id.

Bercian-Flores

Simmons opinion

indicating

that

aggravating

factors

was

defendant’s

maximum

sentence

Act.

also

not

points

to

language

consideration

appropriate
under

the

when

of

in

the

hypothetical

determining

Structured

a

Sentencing

In Simmons, we stated that
Carachuri
.
.
.
forbids
us
from
considering
hypothetical
aggravating
factors
when
calculating
Simmons’s maximum punishment. We again focus first on
Simmons’s “conviction itself,” Carachuri, 130 S. Ct.
at 2586, and his conviction makes clear that he was
neither charged with nor convicted of an aggravated
offense, and that he therefore could not receive a
sentence exceeding one year’s imprisonment.

649 F.3d at 244 (emphasis added).

Bercian-Flores contends that,

as in Simmons, the sentencing judge made no factual findings
that warranted an upward departure from his zero-to-six-months
Guidelines range, and that we are prohibited from considering
such

“hypothetical

maximum sentence.

aggravating

factors”

when

assessing

his

Id. at 244.

Even if we were inclined to extend our holding in Simmons
in

the

manner

that

Bercian-Flores

requests,

we

would

be

precluded from doing so by the Supreme Court’s ruling in United
States v. Rodriquez, 553 U.S. 377 (2008).

In Rodriquez, the

Supreme

state’s

Court

considered

whether

11

Washington

mandatory

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sentencing guidelines could cap the sentence for a conviction
such

that

it

would

not

qualify

as

purposes of 18 U.S.C. § 924(e)(1).

a

predicate

felony

for

The Court held that the

“maximum term of imprisonment . . . prescribed by law” for an
offense is not “the top sentence in a guideline range.”
390-91.

Id. at

The Court reasoned that “guidelines systems typically

allow a sentencing judge to impose a sentence that exceeds the
top of the guidelines range under appropriate circumstances.”
Id.

at

390.

The

Supreme

Court

directly

referenced

U.S.

Sentencing Guideline § 5K2.0, stating that the Guidelines permit
upward departures in the same manner as “all of the mandatory
guidelines systems in existence at the time of the enactment of
the [Armed
case.”

Career

Criminals

Act]

provision

at

issue

in

this

Id. (emphasis added).

In Simmons we distinguished the mandatory guideline system
at issue in Rodriquez from the legislatively mandated system
that North Carolina adopted.

We explained that the Structured

Sentencing Act “does not establish a ‘guidelines system[ ]’;
rather, it mandates specific sentences.”
244

(citing

2006)).

State

v.

Norris,

630

Simmons, 648 F.3d at

S.E.2d

915,

917–18

(N.C.

Unlike the guidelines systems referred to in Rodriquez,

“no circumstances exist under the Structured Sentencing Act in
which a North Carolina judge may ‘impose a sentence that exceeds
the top’ of the ‘range’ set forth in the Act.”
12

Simmons, 649

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F.3d

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at

244

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(quoting

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Rodriquez,

553

U.S.

at

390).

The

Structured Sentencing Act thus served as “a legislative mandate
and not as a ‘guidelines system[ ].’”

Id.

Rodriquez and our interpretation of it in Simmons foreclose
the

approach

that

Bercian-Flores

asks

us

to

adopt.

As

the

Supreme Court made clear, the “maximum term of imprisonment . .
. prescribed by law” for an offense is not “the top sentence in
a guideline range.”

Rodriquez, 553 U.S. at 391.

Bercian-Flores

makes no attempt to distinguish Rodriquez, and we see no avenue
for doing so. 2
What
between

is
North

mandatory
Structured

more,

Bercian-Flores

Carolina’s

pre-Booker
Sentencing

ignores

Structured

federal
Act,

Sentencing

sentencing
“an

crucial

regime.

offender

can

differences

Act

and

the

Under

the

receive

an

aggravated sentence only if” inter alia “a jury has found beyond
a reasonable doubt (or the defendant has pled to) the existence
of those factors.”

Simmons, 649 F.3d at 240.

By contrast, the

pre-Booker Sentencing Guidelines did not specify the aggravating
factors that the judge was authorized to consider and further
2

While it is true that Rodriquez was decided at a time when
the U.S. Sentencing Guidelines were no longer mandatory, the
Court’s reasoning expressly applied to mandatory guidelines
regimes.
Indeed the Court’s reference to Section 5K2.0 was
designed to illustrate the type of discretion that sentencing
judges have under mandatory systems. See Rodriquez, 553 U.S. at
390.
Thus timing also provides no basis for distinguishing
Rodriquez.
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did

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not

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require

reasonable doubt.
Thus,

even

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that

find

a

jury

such

factors

beyond

a

See, e.g., Morris, 429 F.3d at 72.
under

the

pre-Booker

Guidelines,

federal

sentencing judges were not bound by the record of conviction and
were not “mandated” to sentence the defendant in a particular
range in the same way that North Carolina judges were.

Rather,

regardless

of

by

the

defendant,

under

Guidelines,

the

facts

found

the

by

the

pre-Booker

jury

or

Sentencing

pled

to

sentencing judge had discretion to sentence a defendant above
his

or

her

applicable

range

up

to

the

statutory

maximum

in

appropriate circumstances.
Our recent decisions in United States v. Kerr, 737 F.3d 33
(4th Cir. 2013), and United States v. Valdovinos, 760 F.3d 322
(4th

Cir.

statutory

2014),
maximum

further
sentence

support
set

by

the

conclusion

Congress,

and

that

the

the

top

not

sentence in Bercian-Flores’s Guidelines range, is determinative
of whether his prior conviction constituted a predicate felony.
In Kerr, the defendant argued that his prior North Carolina
state

convictions

sentencing

under

did
the

not

qualify

Armed

Career

as

predicate

Criminal

Act,

felonies

for

because

the

sentencing judge sentenced him within the mitigated range rather
than the presumptive range of punishment under the Structured
Sentencing

Act.

737

F.3d

at

34.

The

defendant’s

maximum

sentence was eleven months based on his mitigated sentence range
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as found by the sentencing judge and fourteen months under the
presumptive range.

We held that the defendant’s presumptive

range determined his maximum term of imprisonment for purposes
of the Armed Career Criminal Act, and, therefore, that his prior
offense

qualified

sentencing

judge

as

a

predicate

determined

that

felony.

Even

mitigating

though

factors

in

the
the

defendant’s case required a lower sentencing range, the fact
that the court had discretion to sentence the defendant at a
higher range controlled.

Id. at 38-39.

In Valdovinos, we considered whether a defendant’s prior
drug

trafficking

conviction

qualified

as

a

predicate

felony

where the defendant was sentenced pursuant to a plea agreement
that “capped his prison term at 12 months.”

760 F.3d at 324.

We held that where the Structured Sentencing Act authorized a
maximum sentence of sixteen months’ imprisonment, the offense
was punishable by a term of imprisonment exceeding one year even
though the sentence ultimately imposed pursuant to his plea deal
was for less than one year.

We explained that

in contrast to North Carolina’s mandatory sentencing
scheme, under which a judge may never “impose a
sentence that exceeds the top of the range set forth
in the Act,” a plea agreement’s recommended sentence
is not the final word under North Carolina law. This
is so because the sentencing judge remains free to
reject the agreement.
Id. at 328 (quoting Simmons, 649 F.3d at 244).

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Kerr and Valdovinos confirm that the salient question to be
asked

after

sentence

Simmons

a

is

particular

exceeding one year.

whether

the

defendant

to

a

sentence

term

judge

of

Guidelines,

Bercian-Flores

the
up

the

The same

Even under the pre-Booker

district
to

could

imprisonment

In Simmons, the answer was no.

cannot be said for Bercian-Flores.
Sentencing

sentencing

court

had

statutory

discretion

maximum

to

of

five

that

our

years.
D.
At

bottom,

Bercian-Flores

fails

to

appreciate

holding in Simmons did not change the fact that the cornerstone
of our predicate-felony analysis must be the defendant’s offense
of conviction.
560

U.S.

at

Valdovinos, 760 F.3d at 327 (citing Carachuri,

576

&

582).

“‘[T]he

qualification

of

a

prior

conviction [as a sentencing predicate] does not depend on the
sentence [a defendant] actually received’ but on the maximum
sentence permitted” for his offense of conviction.

Valdovinos,

760 F.3d at 327 (quoting United States v. Edmonds, 679 F.3d 169,
176 (4th Cir. 2012), vacated on other grounds, 133 S. Ct. 376,
aff’d on remand, 700 F.3d 146 (4th Cir. 2012)).
The

U.S.

Sentencing

Guidelines—whether

mandatory

or

advisory—cannot change a defendant’s offense of conviction; that
has been defined by Congress.
unlawfully

transporting

Bercian-Flores was convicted of

aliens
16

in

violation

of

8

U.S.C.

§

Appeal: 13-4504

Doc: 56

Filed: 05/14/2015

1324(a)(1)(B)(ii)

(1994).

Pg: 17 of 17

Congress

set

the

maximum

term

of

imprisonment for that offense at five years.

IV.
For

the

foregoing

reasons,

we

hold

that

the

statutory

maximum term of imprisonment of five years set by Congress, and
not the top sentence in Bercian-Flores’s pre-Booker Sentencing
Guidelines range, is determinative of whether he committed a
predicate

felony

under

U.S.S.G.

§

2L1.2(b)(1)(A)(vii).

Therefore the district court did not err in overruling BercianFlores’s objection and imposing a twelve-level enhancement for
Bercian-Flores’s 1997 alien-smuggling conviction.
AFFIRMED

17