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U.S. v. VARGAS-SERRANO

April 20, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
PEDRO VARGAS-SERRANO, Defendant.



The opinion of the court was delivered by: ROBERT C. BRACK, District Judge

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the issue of whether the Government must prove that Defendant's ("Vargas-Serrano") prior alien smuggling conviction was "for profit" in order to implement a 16 level enhancement under § 2L1.2(b)(1)(A) of the 2002 Sentencing Guidelines. Vargas-Serrano objects to the 16 level enhancement in light of the Supreme Court's holding in Shepard v. United States. For the following reasons, I will OVERRULE Vargas-Serrano's objection to the PSR and find that the 16 level enhancement under § 2L1.2(b)(1)(A) is appropriate.

I. Factual background.

  On September 7, 2003, Vargas-Serrano pleaded guilty to an information charging him with Reentry of an Aggravated Felon in violation of 8 U.S.C. § 1326(b)(2). Vargas-Serrano had previously been convicted in 2000 of Transporting Illegal Aliens in the District of New Mexico. At sentencing for this prior conviction, Vargas-Serrano never objected to Judge Hanson's adoption of the presentence report ("PSR") factual findings. Judge Hanson noted that "the defendant participated in a scheme to smuggle aliens into the United States." The PSR stated that Vargas-Serrano and another individual "were paid $400.00 each from an unknown individual in Ciudad Juarez, to take the illegal aliens to Hatch, New Mexico where they would turn them over to another smuggler for the remainder of the journey." Vargas-Serrano provided the Probation Office with his own statement in exchange for a 2-level reduction for acceptance of responsibility, which read as follows: "I agreed to take twelve undocumented aliens to Hatch, New Mexico. I was to be given $400.00. . . ."

  In sentencing Vargas-Serrano to two years in prison on his prior conviction for alien smuggling, the district court computed his base offense level at 12 under § 2L1.1 of the Guidelines. U.S.S.G. § 2L1.1 (2002). Section 2L1.1 provides for a 3-level decrease in the base offense level if the offense "was committed other than ...


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