9th Cir.;
71-50026

The court of appeals vacated a judgment of sentence and remanded. The court held that the length of a state sentence imposed prior to the defendant's first deportation determined whether or not he was subject to an eight-level enhancement under U.S.S.G. §2L1.2(b)(2)(B).

In 2003, Mexican native and citizen Virginio Hernandez Martinez pleaded guilty to charges of felony lewd acts with a child. A California court sentenced him to five years of probation and 365 days in jail. In June 2004, Hernandez Martinez was deported to Mexico. When he thereafter failed to report to his probation officer, his probation was revoked. When he returned to the United States without authorization in May 2005, he was sentenced to three years of incarceration for the revoked probation term. After serving the state sentence, Hernandez Martinez pleaded guilty to illegal reentry. He was deported, but reentered again in 2014. He pleaded guilty to felony illegal reentry.