             Case: 12-14245    Date Filed: 05/23/2013   Page: 1 of 4


                                                        [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-14245
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 1:10-cr-00330-TWT-JFK-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

JOSE ANTONIO SANTOS,
a.k.a. Luis Antonio Alomar Olivera,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                                (May 23, 2013)

Before CARNES, MARCUS, and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Jose Antonio Santos appeals his 57-month sentence, imposed after he

pleaded guilty to one count of illegal reentry by an alien in violation of 8 U.S.C. §

1326(a), (b)(1), one count of falsely representing himself as a United States citizen

in violation of 18 U.S.C. § 911, and one count of false use of a passport in

violation of 18 U.S.C. § 1542. Santos contends that the district court erred in

applying a 12-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the

finding that he had previously been deported after having been convicted of a

crime of violence. He argues that § 2L1.2(b)(1)(A)(ii) does not apply because his

prior conviction for criminal sexual conduct was vacated and expunged before he

was convicted and sentenced for his current offenses.

      We review de novo the district court’s interpretation of the sentencing

guidelines and its application of the guidelines to the facts. United States v.

Barrington, 648 F.3d 1178, 1194–95 (11th Cir. 2011). Section 2L1.2(b)(1)(A)

provides that, when sentencing a defendant who “previously was deported, or

unlawfully remained in the United States after a conviction for a felony that is . . .

a crime of violence,” the district court should “increase [his offense level] by 12

levels if the [prior] conviction does not receive criminal history points.” U.S.S.G.

§ 2L1.2(b)(1)(A). The plain language of that enhancement requires the court to

consider whether the defendant had a prior conviction for a crime of violence at the




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time of his earlier deportation, regardless of what happened after that deportation.

See United States v. Orduno-Mireles, 405 F.3d 960, 962 n.1 (11th Cir.2005).

      In Orduno-Mireles we rejected the defendant’s argument that because “he

successfully got [a prior felony crime of violence] conviction vacated after illegally

returning to the United States, the offense should not count for purposes of the §

2L1.2(b)(1)(A) enhancement.” Id. The defendant in that case had been convicted

of two crimes of violence and then had been deported. Id. at 961. After illegally

reentering the United States, he got one of his prior convictions vacated. Id. at 962

n.1. After that, he was convicted of illegal reentry, and the district court applied

the § 2L1.2(b)(1)(A) enhancement. Id. We concluded that because the defendant

had at one point been deported after a felony conviction for a crime of violence,

the enhancement was properly applied even though that conviction was later

vacated. Id.

      Santos was convicted of a crime of violence in 1992. He was deported in

1998, returned to the United States illegally, and was deported again in 2002, but

then returned illegally yet again. In 2006 he was convicted of illegal reentry to the

United States. In 2008 he got his 1992 conviction vacated and expunged. He was

deported for a third time in 2009, and was arrested at the Atlanta airport in 2010

when he tried to reenter the United States illegally. He was convicted and

sentenced for his current offenses in 2011. Because Santos had twice been


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deported (in 1998 and 2002) after having been convicted of a felony crime of

violence, and the felony crime of violence conviction did not contribute any points

to his criminal history category calculation, the district court properly applied a 12-

level enhancement under § 2L1.2(b)(1)(A)(ii).

      AFFIRMED.




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