Appeal from a judgment of the United States District Court for the Eastern District of New York (Townes, J.), sentencing Defendant-Appellant Walford Folkes, after a plea of guilty to illegal re-entry and aggravated identity theft, to 64 months' imprisonment. Folkes argues, and the Government concedes, that the district court erred in applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We agree.
REMANDED FOR RESENTENCING.
Submitted: September 20, 2010
BEFORE: NEWMAN and HALL, Circuit Judges, and RESTANI, Judge.*fn1
This is an appeal from a 64-month sentence of imprisonment imposed by the United States District Court for the Eastern District of New York (Townes, J.), after Defendant-Appellant Walford Folkes pleaded guilty to illegally reentering the United States following removal subsequent to a conviction for a felony, in violation of 8 U.S.C. § 1326(a) and (b)(2), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), (b), (c)(2), and (c)(7) Folkes's sentence consists principally of a 40-month term of imprisonment on the illegal re-entry count and a mandatory consecutive 24-month term of imprisonment on the identity theft count.
Folkes's sole contention on appeal is that the district court erred in its calculation of his Sentencing Guidelines range with respect to the illegal re-entry count when it applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) after it concluded that Folkes had reentered the United States after being deported for commission of a crime of violence. The Government concedes that this was error and that the sentence should be corrected. Upon review of the record, we too agree, and we remand for resentencing.
In October 2008, Folkes took a Jamaica Airlines flight from Kingston, Jamaica, to John F. Kennedy International Airport in Queens, New York. At the airport, Folkes claimed to be a United States citizen named "James Pittman" and presented a United States passport in that name. When a customs officer scanned the passport, a computer database alerted him that "James Pittman" was a known alias of Walford Folkes, a previously deported felon. Officers fingerprinted Folkes, and after a preliminary comparison indicated that he was the same person who had been deported in October 1996, the officers arrested him. After waiving his Miranda rights, Folkes admitted that he was knowingly using another person's identity and that he was a citizen of Jamaica and not a citizen of the United States. It is undisputed that in October 1996, an Immigration Judge had ordered Folkes deported because of a conviction in New York State for third-degree burglary, N.Y. Penal Law § 140.20.
Folkes was indicted in November 2008 on illegal re-entry and identity theft charges, as well as one count of misusing a passport and one count of making a false claim of U.S. citizenship. In February 2009, Folkes and the Government entered into a plea agreement in which Folkes agreed to plead guilty to the illegal re-entry and identity theft charges and the Government agreed to drop the other charges. The parties agreed that, pursuant to 18 U.S.C. § 1028A(a)(1) and (b)(2), the identity theft count carried a mandatory sentence of 24 months to run consecutively to any term of imprisonment imposed on the illegal re-entry count. With respect to the illegal re-entry count, the plea agreement assumed that the base offense level was eight, pursuant to U.S.S.G. § 2L1.2(a), and that an eight-level enhancement was warranted under U.S.S.G. § 2L1.2(b)(1)(C) because Folkes had been deported after conviction for an aggravated felony. The plea agreement also contemplated a three-level reduction for acceptance of responsibility, resulting in an adjusted offense level of 13. Assuming Folkes to be in Criminal History Category I, the plea agreement thus calculated a sentencing range of 12 to 18 months for the illegal re-entry count and, with the mandatory 24-month sentence on the identity theft count added in, arrived at a combined Guidelines range of 36 to 42 months. The Government stood*fn2 by this Guidelines range at Folkes's subsequent guilty plea hearing. At that hearing, Folkes admitted attempting to enter the United States under a false name and with false identification, and also admitted to having previously been convicted of a burglary.
The Pre-Sentence Report ("PSR") prepared by the Probation Department reached a different Guidelines calculation from the one described in the plea agreement. Specifically, the Probation Department took the position that Folkes's conviction for burglary was not only an aggravated felony but also a crime of violence, such that a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) should apply rather than the 8-level enhancement under § 2L1.2(b)(1)(C) proposed by the plea agreement. The PSR's calculation resulted in an advisory Guidelines range of 37 to 46 months on the illegal re-entry count. The PSR stated that Folkes had stolen property after he forced his way into an apartment at gunpoint and tied up a victim with a telephone line, in the presence of the victim's child who was less than one year old.
In his sentencing letter to the district court, Folkes did not dispute that the 16-level enhancement for a crime of violence could apply to him. He argued for a lower sentence only on the basis that the Guidelines range agreed to by the parties in the plea agreement was adequate to serve the purposes of sentencing set forth in 18 U.S.C. § 3553(a). The Government, in its sentencing letter, endorsed the new calculation by the Probation Department, arguing that the 16-level enhancement was justified not by the burglary conviction but by Folkes's separate conviction in January 1995 for third-degree criminal possession of a loaded firearm, in violation of N.Y. Penal Law § 265.02(4) (repealed 2006). The Government claimed that it had previously declined to pursue a 16-level enhancement based on the firearms conviction only because it had concluded that it did not qualify as a "firearms offense" within the meaning of U.S.S.G. § 2L1.2, Application Note 1(B)(v), and that it had failed to notice that the firearms conviction nevertheless qualified as a crime of violence.*fn3
At the sentencing hearing, defense counsel made no objection to the PSR, calling it "a very thorough and accurate report." Sent. Tr. at 3. Defense counsel did not dispute the PSR's calculations but argued that the district court should nevertheless sentence within the range contemplated by the plea agreement, which adequately addressed the seriousness of the offense, and that Folkes's burglary "sounds very serious but it is much more serious on paper than it actually was because the [d]istrict [a]attorney and the [c]court allowed him to plead guilty to the gun [charge] and get one year." Id. at 5. The Government stated that it "t[ook] issue with some of the factual assertions made by defense counsel," but otherwise stated only that it believed a sentence between 58 and 67 months to be appropriate. Id. at 13.
The district court adopted the Sentencing Guidelines calculation set forth by the Probation Department ...