Court: Court of Appeals for the Second Circuit; August 5, 2002; Federal Appellate Court
Jose Hidalgo-Macias appeals his November 2, 2001, sentence for illegal reentry under 8 U.S.C. §§ 1325(a) and 1326(a), following a guilty plea. He received a 30-month prison sentence and three years of supervised release. The appeal centers on whether his past conviction for attempted burglary qualifies as an "aggravated felony" for sentencing purposes, as defined by U.S.S.G. § 2L1.2 and 8 U.S.C. § 1101(a)(43). The district court determined that Hidalgo-Macias's prior conviction constituted an aggravated felony, citing a cumulative jail time of six months from the initial sentence and one year from a probation revocation.
Hidalgo-Macias, a Mexican national who was previously granted residency in the U.S., was deported in July 1999 after his conviction. He re-entered the U.S. unlawfully and was arrested in January 2001. The government and the United States Probation Office argued that his total incarceration time exceeded one year, justifying the aggravated felony designation. Hidalgo-Macias contended that the revocation sentence should not factor into his prior jail time. The district court sided with the USPO, enhancing his offense level and imposing the 30-month sentence.
The appellate review standard for sentencing guideline applications is de novo. The case includes a discussion on the U.S. Sentencing Guidelines, particularly focusing on the implications of prior felony convictions on sentencing for immigration law violations.
A conviction for specific felonies can lead to various enhancements in sentencing under U.S.S.G. 2L1.2(b)(1). A felony conviction for drug trafficking exceeding 13 months, violent crimes, firearms offenses, child pornography, national security offenses, human trafficking, or alien smuggling for profit results in a 16-level enhancement. A felony drug trafficking conviction with a sentence of 13 months or less results in a 12-level increase. An aggravated felony conviction leads to an 8-level enhancement, while any other felony results in a 4-level increase.
Hidalgo-Macias's prior felony conviction for attempted burglary would have received an 8-level enhancement if classified as an aggravated felony; otherwise, a 4-level increase would apply. The term "aggravated felony" aligns with the definition in 8 U.S.C. 1101(a)(43), which includes theft or burglary offenses with a prison term of at least one year and attempts to commit such offenses. It has been established in this Circuit that the "term of imprisonment" refers to the actual term imposed. Hidalgo-Macias was initially sentenced to six months of incarceration and five years of probation for attempted burglary. This would not qualify as an aggravated felony without a probation violation.
However, after his probation was revoked, he received a one-year jail sentence. He argued that this "re-sentence" should not be considered part of the actual sentence imposed, suggesting that "actual sentence imposed" means the initial sentence. This interpretation is not supported by the statute or case law. The argument was rejected in United States v. Jimenez, where a similar situation was ruled to consider the total term of imprisonment after probation revocation.
Under New York law, a sentence of probation is considered a tentative disposition that can be modified or revoked according to the relevant statutes. This principle aligns with federal law, which does not classify a violation of probation as a separate offense, but views it as a modification of the original sentence. Revocation of probation reinstates the original sentence for the underlying conviction rather than serving as punishment for the actions leading to revocation. Consequently, a sentence of imprisonment imposed after probation revocation is treated as a modification of the original sentence and is part of the "actual sentence imposed" for the original offense.
In the case of Hidalgo-Macias, the 18-month term of incarceration for his prior conviction qualifies as an aggravated felony, warranting an eight-level enhancement from the base offense level for illegal reentry. During sentencing, the district court referenced the USPO's recommendation without detailed reasoning, relying on Chapter Four of the Sentencing Guidelines for assessing criminal history. However, the court clarified that while a revocation sentence is considered part of the original for aggravated felony purposes, the criminal history rules do not justify this determination. The calculation of offense level and criminal history is intended for different analytical purposes, focusing on the severity of the current offense versus recidivism and deterrence.
Ultimately, the judgment of the district court was affirmed, adhering to the standards set forth in the relevant legal precedents and guidelines.
