In United States v. Hernandez Martinez, --- F.3d ---, No. 17-50026 (9th Cir. 2017), the Court gives us a favorable ruling on the amended version of 2L1.2.
The provision at issue was 2L1.2(b)(2)(B): If, before the
defendant was ordered deported or
ordered removed from the United States
for the first time, the defendant
sustained— . . .
(B) a conviction for a felony offense
(other than an illegal reentry offense)
for which the sentence imposed was
two years or more, increase by
8 levels[.]"
The question was "whether the phrase 'sentenced imposed' includes terms of imprisonment that
were imposed after the defendant’s first deportation order
when assessing the defendant’s eligibility for the
§ 2L1.2(b)(2)(B) enhancement." In other words, what if the defendant: (1) sustained a conviction and received less than 2 years, (2) was then deported, (3) came back and received a revocation sentence above 2 years? Would he or she get the 8-level enhancement?
The answer is no: "a qualifying sentence must be imposed before the
defendant’s first order of deportation or removal."
