                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 03-3513
UNITED STATES OF AMERICA,
                                         Plaintiff-Appellant,
                             v.

JAVIER GARCIA-LOPEZ, a/k/a Noel Garcia,
a/k/a Noel Pedraza Garcia,
                                         Defendant-Appellee.

                       ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
        No. 02 CR 255—Rudolph T. Randa, Chief Judge.
                       ____________
   ARGUED FEBRUARY 17, 2004—DECIDED JULY 12, 2004
                   ____________



  Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
  KANNE, Circuit Judge. Javier Garcia-Lopez was indicted
and pled guilty to a violation of 8 U.S.C. § 1326(a) and (b)
for illegal reentry into the United States following his pre-
vious deportation and removal. Based upon a 1996 armed
robbery conviction, which led to Garcia-Lopez’s 1999 de-
portation, the pre-sentence investigation report recom-
mended a sixteen-level sentencing increase under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (2003). However, prior to the sentencing
hearing, Garcia-Lopez obtained a judicial order vacating his
1996 conviction because of the state court’s failure to inform
2                                                    No. 03-3513

Garcia-Lopez during his plea colloquy of the possible
immigration consequences stemming from a guilty plea, in
violation of state law, see Wis. Stat. § 971.08(2) (1996).
Consequently, at Garcia-Lopez’s August 21, 2003 sentenc-
ing hearing for his illegal reentry conviction, the district
court found that because the 1996 conviction had been
vacated, it could not serve as the basis for an enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The defendant was
sentenced to thirty-seven months imprisonment, three
years supervised release, and $1100 in fines and special
assessments. The government appealed and for the follow-
ing reasons, we vacate and remand for resentencing.


                          I. Analysis
  A district court’s interpretations of the sentencing guide-
lines are reviewed de novo. United States v. De la Torre, 327
F.3d 605, 609 (7th Cir. 2003). Under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), a sixteen-level increase applies in alien-
reentry cases “[i]f the defendant previously was
deported . . . after . . . a conviction for a felony that is . . . a
crime of violence.” Garcia-Lopez does not assert that armed
robbery is not a “crime of violence.” Thus, we need only
address whether the sixteen-level enhancement applies
when the underlying felony conviction was vacated on
technical grounds after deportation but prior to a defen-
dant’s sentencing for the illegal reentry in violation of 8
U.S.C. § 1326 (a) and (b). Because both the plain language
of the guideline text and its underlying justification support
its application to Garcia-Lopez, we determine that the
sixteen-level enhancement should have been applied to the
defendant.
  First, the plain language of U.S.S.G. § 2L1.2(b)(1)(A)(ii)
counsels in favor of its applicability. “When interpreting a
provision of the sentencing guidelines, a court must begin
with the text of the provision and the plain meaning of
No. 03-3513                                                  3

the words in the text.” United States v. Turchen, 187 F.3d
735, 739 (7th Cir. 1999). The plain language of section
2L1.2(b)(1)(A)(ii) indicates that the appropriate inquiry is
whether the defendant had been convicted of a crime of
violence at the time of deportation. Nothing in the guideline
suggests that the analysis should consider whether the
conviction has been vacated subsequent to the deportation
but prior to the sentencing for the reentry offense.
See United States v. Luna-Diaz, 222 F.3d 1, 4 (1st Cir. 2000)
(“The guideline speaks of time, not possession or status. . . .
The guideline . . . is in the past tense, which suggests that
the present status of the aggravated felony conviction is
irrelevant. It is impossible to alter the historical fact that
the defendant was convicted, and then deported.”); United
States v. Cisneros-Cabrera, 110 F.3d 746, 748 (10th Cir.
1997). Despite the 2003 vacatur of Garcia-Lopez’s 1996
armed robbery conviction, it is still the case that, at the
time of his deportation in 1999, he had been convicted of an
aggravated felony. Therefore, the sixteen-level enhance-
ment under section 2L1.2(b)(1)(A)(ii) applies to Garcia-
Lopez’s conviction for violation of 8 U.S.C. § 1326 (a) and
(b). See Luna-Diaz, 222 F.3d at 4 (applying the §
2L1.2(b)(1)(A)(ii) enhancement in nearly identical circum-
stances).
  Furthermore, we find that the district court should not
have relied upon U.S.S.G. § 4A1.2’s definition of “conviction
of offense” to assess whether Garcia-Lopez’s vacated
conviction could serve as the basis for an enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). According to the com-
mentary accompanying section 4A1.2, “[s]entences resulting
from convictions that (A) have been reversed or vacated
because of errors of law or because of subsequently discov-
ered evidence exonerating the defendant, or (B) have been
ruled constitutionally invalid in a prior case are not to be
counted.” U.S.S.G. § 4A1.2, cmt. app. note 6. While section
4A1.2 may be informative, definitions appearing
4                                                    No. 03-3513

in particular sections of the guidelines “are not designed for
general applicability; therefore, their applicability to sec-
tions other than those expressly referenced must be deter-
mined on a case by case basis.” U.S.S.G. § 1B1.1, cmt. app.
note 2 (emphasis added). As we emphasize below, the
vacatur of Garcia-Lopez’s conviction was based upon a
technicality, not because of an error of law, subsequently
discovered evidence, or constitutional defect. Therefore,
application of section 4A1.2 is not warranted in this case—
a conclusion also supported by the clarity of section
2L1.2(b)(1)(A)(ii)’s text on its face and its underlying
purpose, see infra.
  Moreover, while section 2L1.2 nowhere explicitly in-
corporates the exclusion under section 4A1.2, at least two
other guidelines do, including section 4B1.2 Application
Note 3 and section 2K2.1 Application Note 15. If the
Sentencing Commission wanted to ensure that vacated
convictions were not the basis for enhancements under
section 2L1.2(b)(1)(A)(ii), section 4A1.2 could have been
expressly referenced therein.1 That no such reference is
included in the guideline strongly indicates that, in general,


1
   In fact, at the time of Garcia-Lopez’s sentencing in 2003,
Application Note 1(A)(iv) explained that where the enhancement
is keyed to the length of sentence which resulted from the prior
qualifying conviction, e.g., § 2L1.2(b)(1)(A)(i) (“a drug traffick-
ing offense for which the sentence imposed exceeded 13 months”),
“[i]f all or any part of a sentence of imprisonment was probated,
suspended, deferred, or stayed, ‘sentence imposed’ refers only to
the portion that was not probated, suspended, deferred, or
stayed.” U.S.S.G. § 2L1.2, cmt. app. note 1(A)(iv) (emphasis
added). But the commentary contained no corresponding directive
with respect to the vacatur of convictions for crimes of violence
under § 2L1.2(b)(1)(A)(ii). And interestingly, the 2003 amend-
ments to the sentencing guidelines removed altogether the
aforementioned explanation of the term “sentence imposed,” per-
haps indicating a reversal of the drafters’ intent.
No. 03-3513                                                         5

the Sentencing Commission did not intend to place convic-
tions vacated post-deportation outside the umbrella of
section 2L1.2(b)(1)(A)(ii), particularly those vacaturs based
upon a technicality of some sort. Absent a clear indication
to the contrary, we decline to impute any such limitation.
  Second, although the plain language of the guideline is
abundantly clear and we need not look any further, we
emphasize that where the vacatur of a defendant’s prior
conviction for a crime of violence was based upon technical
grounds, application of section 2L1.2(b)(1)(A)(ii) is still
nonetheless supported by the guideline’s underlying pur-
pose and would not “compel an odd result.” Public Citizen
v. United States Dep’t of Justice 491 U.S. 440, 454 (1989).
The section 2L1.2(b)(1) enhancement reflects a judgment by
the Sentencing Commission that the illegal reentry of an
individual previously deported following a conviction for
certain crimes poses a greater risk to the general public’s
health, safety, and welfare than the illegal reentry of an
alien otherwise deported. See Almendarez-Torres v. United
States, 523 U.S. 224, 230 (1998) (discussing recidivism as
the concern underlying 8 U.S.C. § 1326 and U.S.S.G.
§ 2L1.2(b)(1)). Here, this justification is not at all undercut
simply because Garcia-Lopez’s armed robbery conviction
was vacated based upon a technical violation of state law
which occurred during his plea colloquy.2



2
   Indeed, this case justifies the Commission’s concerns: Garcia-
Lopez was charged with illegal reentry after it was discovered
sometime in 2002 that he was confined at the Kettle Moraine
Correctional facility in Plymouth, Wisconsin, presumably the re-
sult of a conviction(s) for a violation(s) of a state law(s) occurring
sometime after Garcia-Lopez illegally reentered the United States
following his 1999 deportation (the record before us does not
reveal the details about the defendant’s most recent state
conviction(s)).
6                                               No. 03-3513

   However, and as the government wisely acknowledged in
its brief to this court and at oral argument, if an otherwise
qualifying conviction was vacated based upon a showing of
actual innocence, the justification for the enhancement
under section 2L1.2(b)(1) would no longer apply. See, e.g.,
United States v. Mejia, 278 F. Supp. 2d 55, 61-63 (D. Mass.
2003) (rejecting the government’s assertion that
§ 2L1.2(b)(1)(A)(i)’s eight-level enhancement applies where
the qualifying conviction was vacated based upon insuf-
ficiency of the evidence). Furthermore, an enhancement
based upon a prior conviction vacated as the result of a
determination of innocence might also raise due process
concerns, as might enhancements based upon egregious
errors of law or constitutional defect. Luna-Diaz, 222 F.3d
at 6, n.5. But cf. Cisneros-Cabrera, 110 F.3d at 748 (affirm-
ing enhancement under § 2L1.2(b)(2) based upon a drug
trafficking conviction even though the conviction was va-
cated by the state court due to ineffective assistance of
counsel). None of these concerns are implicated here, and
we therefore refrain from prospectively determining the
applicability of an enhancement under § 2L1.2(b)(1) in such
circumstances.


                     II. Conclusion
  For the foregoing reasons, we VACATE Garcia-Lopez’s
sentence and REMAND to the district court for resentencing
in accordance with this opinion.
No. 03-3513                                          7

A true Copy:
      Teste:
                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—7-12-04
