                                                    [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           JULY 16, 2008
                            No. 07-13570
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                              CLERK
                      ________________________

                 D. C. Docket No. 07-80009-CR-DTKH

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

MARIO MARTINEZ-GONZALEZ,
a.k.a. Francisco Mateos,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                             (July 16, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:
      Mario Martinez-Gonzalez appeals his 60-month sentence for illegal reentry

into the United States after being deported, in violation of 8 U.S.C. §1326(a),

(b)(1). He was assessed a 16-level increase in his base offense level, pursuant to

U.S.S.G. §2L1.2(b)(1)(A), based on his prior conviction of battery on a law

enforcement officer, for which he served 21 days’ imprisonment and which

qualified as a “crime of violence.” On appeal, Martinez-Gonzalez challenges the

16-level increase.

       “The district court’s interpretation of the sentencing guidelines is subject to

de novo review on appeal, while its factual findings must be accepted unless

clearly erroneous.” United States v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005)

(internal quotations and citations omitted).

      Under §1326(a), any alien who has been deported and subsequently reenters

the United States without permission is subject to a maximum two-year sentence.

8 U.S.C. §1326(a). Under the next subsection, the maximum sentence increases:

      (b). . . Notwithstanding subsection (a) of this section, in the case of
      any alien described in such subsection – (1) whose removal was
      subsequent to a conviction for . . . a felony (other than an aggravated
      felony), such alien shall be fined under title 18, United States Code,
      imprisoned not more than 10 years, or both; (2) whose removal was
      subsequent to a conviction for commission of an aggravated felony,
      such alien shall be fined under such title, imprisoned not more than
      20 years, or both.



                                          2
8 U.S.C. §1326(b).

       Under the Sentencing Guidelines, the base offense level for a defendant

convicted of unlawfully entering or remaining in the United States is 8, but this

offense level may be enhanced by 16 levels if “the defendant previously was

deported . . . after . . . a conviction for a felony that is . . . a crime of violence,” by

8 levels following a conviction for an aggravated felony, or by 4 levels following a

conviction for any other felony. U.S.S.G. §2L1.2(a), (b).

       Under §2L1.2, a “felony” is defined as “any federal, state, or local offense

punishable by imprisonment exceeding one year.” U.S.S.G. §2L1.2, comment.

(n.2). The guideline’s definition of “crime of violence” includes “any offense

under federal, state, or local law that has an element the use, attempted use, or

threatened use of physical force against the person of another.” U.S.S.G. §2L1.2,

comment. (n.1(B)(iii)). Finally, the guideline incorporates the definition of

“aggravated felony” as used in §1101(a)(43), which includes, among other things,

a crime of violence for which the term of imprisonment is at least one year.

U.S.S.G. §2L1.2, comment. (n.3(A)); 8 U.S.C. §1101(a)(43)(F). Here, the parties

agree that Martinez-Gonzalez’s prior conviction for battery on a law enforcement

officer constituted a “crime of violence” under §2L1.2, but it did not meet the




                                             3
requirements of an “aggravated felony” because he was sentenced to less than one

year of imprisonment.

      The gist of appellant’s argument on appeal is as follows. He argues that 8

U.S.C. §1326(b) evidences the congressional intent that the most serious crime of

illegal reentry occurs when a defendant illegally reenters having been previously

removed subsequent to a conviction for commission of an aggravated felony.

Appellant points out that the maximum sentence in such case is 20 years, and the

maximum sentence is 10 years when a defendant reenters illegally having been

previously removed subsequent to a conviction for any other felony. Appellant

argues that the sentencing scheme set forth in U.S.S.G. §2L1.2(b) is inconsistent

with the foregoing congressional intent in that the Guideline provides for only an

8-level enhancement for an illegal entry following a conviction for an aggravated

felony, whereas the Guideline provides a greater enhancement – 16 levels – for an

illegal reentry following conviction for a felony that is a crime of violence.

Appellant argues that this scheme is inconsistent with the congressional intent,

because Congress intended that the most serious crime of illegal reentry was one

following conviction of an aggravated felony. Moreover, appellant argues that

his prior conviction did not even qualify as an aggravated felony (because he was

sentenced to less than one year of imprisonment). Thus, appellant argues, the

                                          4
appropriate sentence for him would be the sentence immediately below the

sentence provided for illegal reentry following conviction of an aggravated felony

– i.e., an enhancement of only 4 levels applicable to illegal reentry following

conviction for any other felony.

      We reject the premise of appellant’s argument. We do not believe that 8

U.S.C. §1326(b) was intended by Congress to fine tune the sentencing process in

the manner suggested by appellant. To the contrary, the plain meaning of

§1326(b) merely establishes the maximum sentence. The congressional

establishment of maximum sentence is a far different enterprise than the

congressionally mandated function of the Sentencing Commission – i.e. to

establish objective guidelines to assist district judges in fine tuning appropriate

sentences for particular crimes.

      Pursuant to the statute, the maximum sentence for illegal reentry by an alien

whose removal was subsequent to a conviction for a felony (other than an

aggravated felony) is 10 years. Appellant’s sentence falls well within that

maximum. As a prior panel of this court noted in a somewhat different context:

“A conflict could arise if application of the Guideline resulted in violation of the

statute, as where the sentence arrived at by application of the Guideline exceeded

the statutory maximum.” United States v. Lazo-Ortiz, 136 F.3d 1282, 1286 (11th

                                           5
Cir. 1998). However, such conflict did not arise in Lazo-Ortiz, and there is no

conflict in this case between the statutory maximum and the relevant Guideline.

      Having rejected the premise of appellant’s argument, we note that appellant

has acknowledged that his prior conviction did constitute a “crime of violence”

under § 2L1.2. Accordingly, the judgment of the district court is

      AFFIRMED.1




      1
          Martinez-Gonzalez’s request for oral argument is denied.

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