                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4504


UNITED STATES OF AMERICA,
                Plaintiff – Appellee,
           v.
JOSE GEOVANI BERCIAN-FLORES, a/k/a Jose Jeovany Bercian-
Flores, a/k/a Jose Geovani Flores-Mendosa, a/k/a Napolean
Villalta,
                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:12−cr−00208−FDW−1)


Argued:   January 29, 2015                 Decided:   May 14, 2015


Before DUNCAN, WYNN, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Duncan and Judge Thacker joined.


ARGUED: Richard Lamb Brown, Jr., LAW OFFICES OF RICHARD L.
BROWN, JR., Monroe, North Carolina, for Appellant.          Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.      ON BRIEF: Anne M. Tompkins,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
WYNN, Circuit Judge:

      Defendant     Jose    Bercian-Flores           pled    guilty    to   re-entering

the   United   States      as   an       illegal    alien.      At    sentencing,     the

district    court     imposed        a    twelve-level       enhancement      based   on

Bercian-Flores’s        1997      felonious         conviction        for    unlawfully

transporting aliens, which the district court determined was an

“offense punishable by imprisonment for a term exceeding one

year” under the U.S. Sentencing Guidelines.                          U.S.S.G. § 2L1.2

cmt. n.2.

      On appeal, Bercian-Flores argues that this Court’s ruling

in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en

banc), precludes the enhancement because the Guidelines range

for   his   1997    conviction           under    the    then-mandatory      Sentencing

Guidelines was zero to six months’ imprisonment.                            Because the

judge who sentenced Bercian-Flores in 1997 had discretion to

sentence him for up to five years, we conclude that the district

court did not err in imposing the enhancement.



                                             I.


      In 1997, Bercian-Flores pled guilty to transportation of an

alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) in the United

States District Court for the Southern District of Texas.                             The

offense     carried     a       statutory          five-year     maximum      term     of

imprisonment.           See      8        U.S.C.        §§   1324(a)(1)(A)(ii)        and
                                             2
(a)(1)(B)(ii).           However,       the         Guidelines       range      for     Bercian-

Flores’s 1997 conviction was calculated as zero to six months,

and he was sentenced to only 107 days’ imprisonment.                                    Bercian-

Flores was removed to El Salvador on August 27, 1997.

       Over   a     decade      later,    in        May     2012,    Bercian-Flores           was

arrested in Mecklenburg County, North Carolina and charged with

being    found      in     the    United        States          following       his     removal

subsequent    to     the     commission       of      a    felony    in     violation        of    8

U.S.C. §§ 1326(a) and (b)(1).                        He pled guilty to the charge

without entering into a plea agreement.

       The probation office prepared a Presentence Report (“PSR”),

which calculated a base offense level of eight and recommended a

twelve-level          enhancement               pursuant            to       U.S.S.G.              §

2L1.2(b)(1)(A)(vii)            (“Unlawfully          Entering       or    Remaining      in    the

United States”) based on Bercian-Flores’s 1997 alien-smuggling

conviction.          Bercian-Flores           raised           objections       to    the     PSR,

arguing that based upon this Court’s decision in Simmons, his

1997    conviction       did    not    constitute          a    felony    for     purposes        of

U.S.S.G. §        2L1.2(b)(1)         because       he    could     not    have      received      a

sentence of more than one year under the mandatory Sentencing

Guidelines     in    effect       in    1997.             The    district       court       denied

Bercian-Flores’s objection, reasoning that Simmons had expressly

distinguished North Carolina’s legislatively mandated sentencing

regime from a guidelines system.

                                                3
      The    district       court      therefore         held      that     Bercian-Flores’s

statutory maximum sentence, a five-year term of imprisonment, as

opposed      to    his     Guidelines         range,        zero     to       six    months    of

imprisonment, controlled.               After crediting Bercian-Flores with a

three-level reduction for acceptance of responsibility, leaving

him   with    an     offense         level    of      seventeen        and     a    recommended

Guidelines        range    of    twenty-seven         to      thirty-three          months,   the

district      court       sentenced       Bercian-Flores               to     thirty     months’

imprisonment.        Bercian-Flores appealed.



                                              II.

      The    U.S.     Sentencing        Guidelines          prescribe         a     twelve-level

enhancement for defendants who unlawfully re-enter the United

States “after . . . a conviction for a felony that is . . . an

alien smuggling offense.”               U.S.S.G. § 2L1.2(b)(1)(A)(vii).                       The

Guidelines        define    “felony”         as   “any     federal,         state,     or   local

offense     punishable          by   imprisonment          for   a     term       exceeding   one

year.”      U.S.S.G. § 2L1.2 cmt. n.2 (emphasis added).                             We review a

district      court’s           interpretation           of      the        U.S.      Sentencing

Guidelines de novo.             United States v. McManus, 734 F.3d 315, 318

(4th Cir. 2013).




                                                  4
                                            III.

     Bercian-Flores         argues        that      the   district      court    erred    in

imposing     the       twelve-level          enhancement          under       U.S.S.G.     §

2L1.2(b)(1)(A)(vii)            because       his      1997     conviction        was     not

punishable    by       a   term      of    imprisonment        exceeding        one    year.

Specifically,      Bercian-Flores           contends      that    the    district      court

did not have authority to sentence him to more than six months

because the Guidelines range for his 1997 conviction was zero to

six months, and in 1997 the Guidelines were mandatory.                                   See

United States v. Booker, 543 U.S. 220, 233 (2005).                                Bercian-

Flores analogizes the pre-Booker Sentencing Guidelines to the

North Carolina Structured Sentencing Act at issue in Simmons.

He argues that the top sentence in his pre-Booker Guidelines

range should guide our analysis of whether his 1997 conviction

constitutes        a       felony         for       purposes       of      U.S.S.G.        §

2L1.2(b)(1)(A)(vii).

                                             A.

     Under    the      sentencing         regime     in   which   Bercian-Flores         was

sentenced     in       1997,      the      U.S.      Sentencing       Guidelines        were

mandatory.      See Booker, 543 U.S. at 233 (“The Guidelines as

written . . . are not advisory; they are mandatory and binding

on all judges.”).           However, the Guidelines did give discretion

to   district      courts       to      depart      upward     from     the     applicable

Guidelines range under certain circumstances.

                                                5
       Specifically, U.S.S.G. § 5K2.0 (1997) enabled a sentencing

judge to “impose a sentence outside the range established by the

applicable       guideline”        if      the    judge        found        an   aggravating

circumstance      not      adequately       taken       into    consideration          by   the

Sentencing Commission in formulating the Guidelines.                              Guideline

5K2.0 further provided that such circumstances “[could not], by

their very nature, be comprehensively listed and analyzed in

advance,”       and   that   the     “[p]resence          of    any    such      factor     may

warrant departure from the guidelines . . . , in the discretion

of     the   sentencing          court.”          Id.          Additionally,         findings

warranting an upward departure need not have been found by a

jury or pled to by the defendant; rather a sentencing judge had

discretion to depart upwards from the Guidelines range so long

as the judge found aggravating facts by a preponderance of the

evidence.        See United States v. Morris, 429 F.3d 65, 72 (4th

Cir.    2005)    (recognizing        that,       both    before       and    after     Booker,

decisions about sentencing factors are made by judges on the

preponderance         of   the    evidence)       (citing       McReynolds        v.    United

States, 397 F.3d 479, 481 (7th Cir. 2005)).

                                             B.

       In the case upon which Bercian-Flores principally relies,

United States v. Simmons, 649 F.3d 237, we considered under what

circumstances a prior North Carolina conviction was punishable



                                             6
by a prison term exceeding one year. 1                  649 F.3d at 239.             Under

the    North    Carolina       Structured    Sentencing       Act,     sentences      were

contingent on two factors: 1) the designated “class of offense”

and 2) the offender’s “prior record level.”                     Id. at 240.           Each

of    those    factors    was    established      by    statute.        Once   a     judge

determined the defendant’s prior record level, the defendant was

then sentenced pursuant to a “statutory table, which provides

three      possible      sentencing         ranges—a         mitigated       range,      a

presumptive      range,        and   an   aggravated         range.”         Id.      The

presumptive      range     governed       unless       the    judge     made       written

findings that identified specific factors designated by the Act

that permitted a departure to the aggravated or mitigated range.

Id.

       Notably, under the Structured Sentencing Act, “[a] judge

may    select    from    the    aggravated      range    only   if     the   State     has

provided a defendant thirty-days’ notice of its intent to prove

the necessary aggravating factors and a jury has found beyond a

reasonable doubt (or the defendant has pled to) the existence of

       1
       Our task in Simmons was to determine whether Simmons’s
prior North Carolina conviction constituted a “felony drug
offense” under the Controlled Substances Act (“CSA”), which
mandates a term of imprisonment of at least ten years if the
offense conduct occurred “after a prior conviction for a felony
drug offense has become final.”      21 U.S.C. § 841(b)(1)(B).
Similarly to the Guideline at issue in this case, the CSA
defines “felony drug offense” as a drug-related “offense that is
punishable by imprisonment for more than one year.” 21 U.S.C. §
802(44).

                                            7
those factors.”     Id.     Once the judge identified the appropriate

range,   the   Structured     Sentencing         Act      required     the    judge    to

choose a sentence from within that range.                    Id.   While the judge,

“[i]n rare cases” could impose a lesser sentence upon a finding

of   “extraordinary       mitigating       factors,”         the     judge    had     “no

discretion     to   impose        a     more        severe     sentence       even      in

extraordinary cases.”       Id. at 240 n.2 (emphasis added).

      Before Simmons, when assessing whether a defendant’s prior

North Carolina offense was punishable by a prison term greater

than one year we looked to “the maximum aggravated sentence that

could be imposed for that crime upon a defendant with the worst

possible criminal history.”              United States v. Harp, 406 F.3d

242, 246 (4th Cir. 2005).               However, the Supreme Court’s 2010

decision in Carachuri–Rosendo v. Holder, 560 U.S. 563 (2010),

led us to reconsider that approach.

     In Carachuri, the Supreme Court examined a provision of the

Immigration and Nationality Act that permitted an alien to seek

cancellation of removal where he “has not been convicted of any

aggravated     felony.”      8        U.S.C.    §    1229b(a)(3).            Aggravated

felonies as defined by the Act were limited to crimes for which

the “maximum term of imprisonment authorized” is “more than one

year.”       Carachuri,    560    U.S.     at       567    (quoting    18     U.S.C.    §

3559(a)).      Carachuri    had       received      a     twenty–day    sentence       for

possessing less than two ounces of marijuana in violation of

                                          8
Texas law and a ten–day sentence for possessing a Xanax without

a prescription.         The government argued that, hypothetically, had

Carachuri faced federal prosecution for that offense, he could

have been sentenced to two years’ imprisonment.                            Therefore, the

government       contended       that    his       offense     was    “punishable”        by

imprisonment for more than one year.

      The    Supreme      Court     unanimously           rejected     this      argument.

Focusing    on    the    INA’s     use   of       the   phrase   “convicted       of   a[n]

aggravated felony,” the Supreme Court reasoned that the “text

thus indicates that we are to look to the conviction itself as

our starting place.”            Id. at 576.             In other words, whether the

conduct      underlying           the     defendant’s            prior          conviction

hypothetically          could     have    received           felony     treatment        was

irrelevant.       See id. at 576–81.               Thus the dispositive question

for   determining        whether    a    defendant         committed       an   aggravated

felony    was    simply     whether      he       was    actually     convicted     of    an

offense punishable by more than one year in prison.

      Applying this reasoning in Simmons, we held that a prior

North     Carolina       conviction       was       punishable        by     imprisonment

exceeding one year only if the particular defendant’s crime of

conviction was punishable under North Carolina law by a prison

term exceeding one year.




                                              9
                                     C.

      Bercian-Flores     likens     the     pre-Booker     U.S.     Sentencing

Guidelines to the Structured Sentencing Act, and contends that

under Simmons, his 1997 conviction was not punishable by a term

of   imprisonment    exceeding    one     year   because   the    top    of   his

mandatory Guidelines range for that conviction was six months.

      Bercian-Flores’s argument has some intuitive appeal.                     In

many ways, the pre-Booker U.S. Sentencing Guidelines were no

less mandatory than North Carolina’s Structured Sentencing Act.

See, e.g., Mistretta v. United States, 488 U.S. 361, 391 (1989)

(“[T]he Guidelines bind judges and courts in the exercise of

their uncontested responsibility to pass sentence in criminal

cases.”).    While     sentencing   judges       had   discretion   to   depart

upwards from a Guidelines range, in Booker the Supreme Court

characterized that discretion as exceedingly narrow:

      At first glance, one might believe that the ability of
      a district judge to depart from the Guidelines means
      that she is bound only by the statutory maximum. . . .
      Importantly, however, departures are not available in
      every case, and in fact are unavailable in most.    In
      most cases, as a matter of law, the Commission will
      have adequately taken all relevant factors into
      account, and no departure will be legally permissible.
      In those instances, the judge is bound to impose a
      sentence within the Guidelines range.
543 U.S. at 234.

      Bercian-Flores contends that the judge who sentenced him

for his 1997 alien smuggling conviction found no aggravating



                                     10
factors that warranted an upward departure from the Guidelines

range and, therefore, was no less “bound to impose a sentence

within the Guideline range,” which in his case was less than one

year.        Id.     Bercian-Flores       also    points    to    language      in   the

Simmons opinion        indicating     that     consideration       of    hypothetical

aggravating        factors    was   not    appropriate      when    determining       a

defendant’s        maximum   sentence     under    the     Structured        Sentencing

Act.    In Simmons, we stated that

        Carachuri   .   .   .  forbids   us  from   considering
        hypothetical   aggravating  factors   when  calculating
        Simmons’s maximum punishment. We again focus first on
        Simmons’s “conviction itself,” Carachuri, 130 S. Ct.
        at 2586, and his conviction makes clear that he was
        neither charged with nor convicted of an aggravated
        offense, and that he therefore could not receive a
        sentence exceeding one year’s imprisonment.
649 F.3d at 244 (emphasis added).                Bercian-Flores contends that,

as in Simmons, the sentencing judge made no factual findings

that warranted an upward departure from his zero-to-six-months

Guidelines range, and that we are prohibited from considering

such     “hypothetical       aggravating       factors”     when    assessing        his

maximum sentence.        Id. at 244.

        Even if we were inclined to extend our holding in Simmons

in     the   manner    that     Bercian-Flores       requests,          we   would    be

precluded from doing so by the Supreme Court’s ruling in United

States v. Rodriquez, 553 U.S. 377 (2008).                        In Rodriquez, the

Supreme      Court   considered     whether      Washington      state’s      mandatory



                                          11
sentencing guidelines could cap the sentence for a conviction

such    that   it    would    not   qualify     as    a   predicate     felony     for

purposes of 18 U.S.C. § 924(e)(1).                    The Court held that the

“maximum term of imprisonment . . . prescribed by law” for an

offense is not “the top sentence in a guideline range.”                        Id. at

390-91.      The Court reasoned that “guidelines systems typically

allow a sentencing judge to impose a sentence that exceeds the

top of the guidelines range under appropriate circumstances.”

Id.    at    390.      The    Supreme       Court    directly    referenced        U.S.

Sentencing Guideline § 5K2.0, stating that the Guidelines permit

upward departures in the same manner as “all of the mandatory

guidelines systems in existence at the time of the enactment of

the [Armed       Career     Criminals   Act]    provision       at   issue   in    this

case.”      Id. (emphasis added).

       In Simmons we distinguished the mandatory guideline system

at issue in Rodriquez from the legislatively mandated system

that North Carolina adopted.                We explained that the Structured

Sentencing Act “does not establish a ‘guidelines system[ ]’;

rather, it mandates specific sentences.”                  Simmons, 648 F.3d at

244    (citing      State    v.   Norris,    630    S.E.2d   915,     917–18      (N.C.

2006)).      Unlike the guidelines systems referred to in Rodriquez,

“no circumstances exist under the Structured Sentencing Act in

which a North Carolina judge may ‘impose a sentence that exceeds

the top’ of the ‘range’ set forth in the Act.”                        Simmons, 649

                                        12
F.3d       at    244    (quoting     Rodriquez,    553     U.S.      at     390).        The

Structured Sentencing Act thus served as “a legislative mandate

and not as a ‘guidelines system[ ].’”                Id.

       Rodriquez and our interpretation of it in Simmons foreclose

the    approach         that    Bercian-Flores    asks    us    to    adopt.        As   the

Supreme Court made clear, the “maximum term of imprisonment . .

. prescribed by law” for an offense is not “the top sentence in

a guideline range.”              Rodriquez, 553 U.S. at 391.               Bercian-Flores

makes no attempt to distinguish Rodriquez, and we see no avenue

for doing so. 2

       What      is     more,   Bercian-Flores    ignores       crucial      differences

between         North    Carolina’s    Structured        Sentencing        Act    and    the

mandatory         pre-Booker      federal   sentencing         regime.           Under   the

Structured         Sentencing        Act,   “an    offender          can     receive      an

aggravated sentence only if” inter alia “a jury has found beyond

a reasonable doubt (or the defendant has pled to) the existence

of those factors.”              Simmons, 649 F.3d at 240.            By contrast, the

pre-Booker Sentencing Guidelines did not specify the aggravating

factors that the judge was authorized to consider and further

       2
       While it is true that Rodriquez was decided at a time when
the U.S. Sentencing Guidelines were no longer mandatory, the
Court’s reasoning expressly applied to mandatory guidelines
regimes.    Indeed the Court’s reference to Section 5K2.0 was
designed to illustrate the type of discretion that sentencing
judges have under mandatory systems. See Rodriquez, 553 U.S. at
390.    Thus timing also provides no basis for distinguishing
Rodriquez.

                                            13
did     not     require       that     a     jury       find       such       factors       beyond     a

reasonable doubt.             See, e.g., Morris, 429 F.3d at 72.

       Thus,        even      under        the        pre-Booker         Guidelines,          federal

sentencing judges were not bound by the record of conviction and

were not “mandated” to sentence the defendant in a particular

range in the same way that North Carolina judges were.                                        Rather,

regardless          of     facts    found        by    the     jury      or    pled     to    by     the

defendant,          under     the     pre-Booker             Sentencing         Guidelines,          the

sentencing judge had discretion to sentence a defendant above

his    or     her    applicable       range       up     to    the       statutory      maximum       in

appropriate circumstances.

       Our recent decisions in United States v. Kerr, 737 F.3d 33

(4th Cir. 2013), and United States v. Valdovinos, 760 F.3d 322

(4th     Cir.       2014),     further       support           the       conclusion         that     the

statutory       maximum       sentence       set       by     Congress,        and    not    the     top

sentence in Bercian-Flores’s Guidelines range, is determinative

of whether his prior conviction constituted a predicate felony.

       In Kerr, the defendant argued that his prior North Carolina

state       convictions       did     not    qualify          as    predicate        felonies        for

sentencing          under    the    Armed        Career       Criminal        Act,    because        the

sentencing judge sentenced him within the mitigated range rather

than the presumptive range of punishment under the Structured

Sentencing          Act.      737     F.3d       at    34.         The    defendant’s         maximum

sentence was eleven months based on his mitigated sentence range

                                                  14
as found by the sentencing judge and fourteen months under the

presumptive range.          We held that the defendant’s presumptive

range determined his maximum term of imprisonment for purposes

of the Armed Career Criminal Act, and, therefore, that his prior

offense   qualified    as    a   predicate   felony.       Even   though    the

sentencing   judge    determined      that   mitigating    factors     in   the

defendant’s case required a lower sentencing range, the fact

that the court had discretion to sentence the defendant at a

higher range controlled.         Id. at 38-39.

       In Valdovinos, we considered whether a defendant’s prior

drug   trafficking    conviction     qualified   as    a   predicate    felony

where the defendant was sentenced pursuant to a plea agreement

that “capped his prison term at 12 months.”                760 F.3d at 324.

We held that where the Structured Sentencing Act authorized a

maximum sentence of sixteen months’ imprisonment, the offense

was punishable by a term of imprisonment exceeding one year even

though the sentence ultimately imposed pursuant to his plea deal

was for less than one year.         We explained that

       in contrast to North Carolina’s mandatory sentencing
       scheme, under which a judge may never “impose a
       sentence that exceeds the top of the range set forth
       in the Act,” a plea agreement’s recommended sentence
       is not the final word under North Carolina law. This
       is so because the sentencing judge remains free to
       reject the agreement.

Id. at 328 (quoting Simmons, 649 F.3d at 244).



                                      15
      Kerr and Valdovinos confirm that the salient question to be

asked      after     Simmons     is     whether        the        sentencing    judge       could

sentence      a     particular     defendant           to     a    term   of    imprisonment

exceeding one year.             In Simmons, the answer was no.                        The same

cannot be said for Bercian-Flores.                           Even under the pre-Booker

Sentencing        Guidelines,      the     district          court     had     discretion      to

sentence     Bercian-Flores           up   to    the      statutory       maximum      of    five

years.

                                                D.

      At     bottom,       Bercian-Flores            fails    to     appreciate       that   our

holding in Simmons did not change the fact that the cornerstone

of our predicate-felony analysis must be the defendant’s offense

of conviction.          Valdovinos, 760 F.3d at 327 (citing Carachuri,

560   U.S.    at     576    &   582).      “‘[T]he           qualification       of    a    prior

conviction [as a sentencing predicate] does not depend on the

sentence [a defendant] actually received’ but on the maximum

sentence permitted” for his offense of conviction.                               Valdovinos,

760 F.3d at 327 (quoting United States v. Edmonds, 679 F.3d 169,

176 (4th Cir. 2012), vacated on other grounds, 133 S. Ct. 376,

aff’d on remand, 700 F.3d 146 (4th Cir. 2012)).

      The     U.S.         Sentencing       Guidelines—whether                 mandatory       or

advisory—cannot change a defendant’s offense of conviction; that

has been defined by Congress.                    Bercian-Flores was convicted of

unlawfully         transporting       aliens         in     violation     of    8     U.S.C.    §

                                                16
1324(a)(1)(B)(ii)      (1994).   Congress     set    the   maximum    term   of

imprisonment for that offense at five years.



                                   IV.

     For    the   foregoing   reasons,   we   hold    that   the     statutory

maximum term of imprisonment of five years set by Congress, and

not the top sentence in Bercian-Flores’s pre-Booker Sentencing

Guidelines range, is determinative of whether he committed a

predicate     felony     under   U.S.S.G.      §      2L1.2(b)(1)(A)(vii).

Therefore the district court did not err in overruling Bercian-

Flores’s objection and imposing a twelve-level enhancement for

Bercian-Flores’s 1997 alien-smuggling conviction.

                                                                      AFFIRMED




                                   17
