Simmons does not shield defendant from 12-level enhancement

US v. Bercian-Flores:  In this appeal, Jose Bercian-Flores challenged the sentencing enhancement he received in his illegal re-entry case, a 12-level bump based upon his prior 1997 conviction for unlawfully transporting aliens.  Bercian-Flores argued on appeal that Simmons shielded him from this enhancement, as his guidelines range for his 1997 conviction (when the guidelines were mandatory) was zero to 6 months; the Fourth Circuit found, however, that since the sentencing judge in 1997 had the discretion to sentence Bercian-Flores for up to five years then, the enhancement here was not an error.  The Fourth Circuit affirmed the sentence.

Bercian-Flores emphasized that he was not punished for more than a year for his 1997 conviction, and the guidelines prescribe a 12-level enhancement for illegal re-entry defendants when such an individual has a prior felony conviction for smuggling other aliens “punishable by imprisonment for a term exceeding one year.”  U.S.S.G. §2L1.2.  What’s more, the judge who sentenced Bercian-Flores in 1997 had found no aggravating factors, and no factual findings that warranted an upward departure beyond zero to six months.  The Fourth Circuit disagreed, finding that the top sentence in a guidelines range is not the maximum term of imprisonment, as determined by the Supreme Court.  The statutory maximum sentence as set by Congress controls whether Bercian-Flores’ prior convictions counts as a predicate felony for sentencing enhancement here, not the top sentence in his guidelines range.