UNITED STATES of America, Appellee, v. Lorenzo VIEZCAS-SOTO, Appellant, 562 F.3d 903

BEAM, Circuit Judge. Lorenzo Viezcas-Soto appeals his twenty-four month sentence after pleading guilty to one count of illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326(a). In calculating his offense level under the United States Sentencing Guidelines (U.S.S.G.), the district court imposed a sixteen-level enhancement after determining that a pri- or state conviction qualified as a felony crime of violence.

Because we conclude the government did not meet its burden of proving the offense was a felony within the meaning of the relevant Guidelines section, we vacate Viezcas-Soto’s sentence and remand for resentencing. I. BACKGROUND Viezcas-Soto, a Mexican citizen, first entered the United States in 1980. He is not a United States citizen, and has been deported on three prior occasions: December 1990, July 1991, and February 1994. In November 2007, Viezcas-Soto was once again apprehended by immigration authorities, this time in Omaha, Nebraska.

He subsequently pleaded guilty to the illegal reentry charge underlying the instant appeal. The presentence investigation report (PSR) revealed that in 1990, Viezcas-Soto was convicted in the Superior Court of San Joaquin County, California, on two counts of unlawful sexual intercourse. According to the PSR, the California court imposed a suspended sentence of 365 days in jail (with credit for six days served) and placed Viezcas-Soto on five years’ probation. Based on that conviction, the PSR included a sixteen-level enhancement under Guidelines

section 2L1.2(b)(1)(A)(ii), for illegal reentry after a deportation that followed a conviction for a felony crime of violence. With the enhancement and an adjustment for acceptance of responsibility, ViezcasSoto’s offense level rose from 8 to 21 and, coupled with his criminal history category of II, subjected him to an advisory range of 41-51 months. Because the statutory maximum sentence was two years’ imprisonment, however, twenty-four months became the default Guidelines sentence.

At sentencing, Viezcas-Soto objected to the enhancement on the grounds that his prior offense was neither a felony nor a crime of violence. The government then introduced the state court information, which the district court noted was pled in two felony counts. The government also argued that the conviction was for statutory rape, an enumerated crime of violence under the relevant Guidelines section. On that record, the district court found the enhancement was warranted. The district court thereafter denied Viezcas-Soto’s motion for a downward departure and sentenced him to twenty-four months’ imprisonment.

This appeal followed. II. DISCUSSION Before imposing a sentence, the district court must begin by correctly calculating the applicable advisory Guidelines range. United States v. Weems, 517 F.3d 1027, 1029 (8th Cir.2008). On appeal from that determination, we review the district court’s application of the Guidelines de novo, while any factual findings are reviewed for clear error. Id. at 1030. Guidelines

section 2L1.2(b)(1)(A)(ii) increases a defendant’s base offense level by sixteen if the defendant was previously deported following “a conviction for a felony that is ... (ii) a crime of violence.” Both “felony” and “crime of violence” are terms of art specifically defined for purposes of this

section in the accompanying commentary. U.S.S.G. § 2L1.2(b)(1)(A)(ii), cmt. n. 1(B)(iii) & n. 2. On appeal, Viezcas-Soto contends that his prior California conviction for unlawful sexual intercourse does not satisfy the relevant definition of either term. He also challenges his sentence as substantively unreasonable. Because we conclude the government failed to prove, by a preponderance of the evidence, that his prior offense was a felony within the meaning of

section 2L1.2(b)(l)(A)(ii), we reverse without reaching his other arguments. See United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir.2008) (denoting the relevant burden of proof), cert. denied sub nom. Rubio-Guerrero v. United States, — U.S. -, 129 S.Ct. 1365, 173 L.Ed.2d 624 (2009). A felony for these purposes is “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2(b)(l)(A)(ii), cmt. n. 2. Application of that fairly straightforward definition is complicated in this case, however, by the fact Viezcas-Soto was convicted of violating California Penal Code

section 261.5(c). That offense, a so-called “wobbler,” is either a misdemeanor punishable by imprisonment in the county jail for a term not exceeding one year or a felony punishable by imprisonment in the state prison for up to three years. Cal.Penal Code § 261.5(c); Id. at § 18. Thus, only the felony version of the offense qualifies for the enhancement as an offense “punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2(b)(l)(A)(ii), cmt. n. 2.

At sentencing, the government introduced the information filed against Viezcas-Soto in San Joaquin County as evidence that his prior offense was a felony. Noting that it alleged two felony counts of unlawful sexual intercourse, the district court agreed with the government. That document, however, is not dispositive of the felony-misdemeanor inquiry. United States v. Brown, 33 F.3d 1014, 1018 (8th Cir.1994). Rather, “ ‘[u]nder California law, where [an] offense is alternatively a felony or misdemeanor, it is regarded as a felony for every purpose until judgment.’ ” United States v.

Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir.2002) (alterations and emphasis added) (quoting United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992)). At that time, as relevant to this case, a wobbler becomes a misdemean- or for all purposes “[a]fter a judgment imposing a punishment other than imprisonment in the state prison.” Cal.Penal Code § 17(b)(1). In this case, it appears such a judgment was rendered. The PSR indicates the California court imposed a suspended sentence of 365 days in jail, with credit for time served, and placed Viezcas-Soto on five years’ probation.

In granting probation, California judges may either “suspende ] the imposition of sentence or ... impos[e] sentence and suspend[] the execution thereof.” People v. Alotis, 60 Cal.2d 698, 36 Cal.Rptr. 443, 388 P.2d 675, 681 n. 3 (1964) (en banc) (citing CahPenal Code § 1203.1). In the former instance, no actual judgment is rendered within the meaning of

section 17(b)(1). See id.; see also Gomez-Hernandez, 300 F.3d at 978. This is because under California law, neither an order granting probation nor a suspension of the imposition of sentence is considered to be a judgment imposing punishment. United States v. Bridgeforth, 441 F.3d 864, 871 (9th Cir.2006) (citing Robinson, 967 F.2d at 292-93). In the latter instance, by contrast, a judgment is actually rendered. People v. Arguello, 59 Cal.2d 475, 30 Cal.Rptr. 333, 381 P.2d 5, 6 (1963) (en banc). And in such a case, if the sentence imposed on a wobbler offense is a jail term (as opposed to a term in state prison), “the defendant has, under Penal Code,

section 17[ (b)(1) ], been convicted of a misdemeanor ‘for all purposes after a judgment,’ ” notwithstanding the fact the sentence is thereafter suspended and probation granted. Alotis, 36 Cal.Rptr. 443, 388 P.2d at 681 (quoting Cal.Penal Code § 17). Thus, in Alotis, the California Supreme Court held that a defendant charged with a wobbler offense stood convicted only of the misdemeanor version of the offense where the state trial judge sentenced her to one year in the county jail, suspended execution of that sentence, and placed her on three years’ probation.

Id.; see also, e.g., In re Daoud, 16 Cal.3d 879, 129 Cal.Rptr. 673, 549 P.2d 145, 146, 148 n. 4 (Cal.1976) (en banc) (noting that a petitioner who received a suspended jail sentence and probation on a wobbler offense had only been convicted of a misdemeanor because “she was sentenced to the county jail rather than the state prison”). It would seem, therefore, that when the state trial judge sentenced Viezcas-Soto to 365 days in jail, his offense was converted into a misdemeanor for all purposes after a judgment within the meaning of

section 17(b)(1), notwithstanding the fact that sentence was suspended and probation granted. We couch our conclusion in somewhat equivocal terms, however, because there is an ambiguity in the record that renders the matter not entirely free from doubt. Specifically, although Viezcas-Soto received a suspended jail sentence, he also received five years’ probation. Thus, the government cites California Penal Code

section 1203a, which governs the period of probation in misdemeanor cases and “limits probation periods to three years or the maximum sentence provided by law for the underlying offense, whichever is greater.” Daoud, 129 Cal.Rptr. 673, 549 P.2d at 147-48. Here, the maximum sentence for two counts of misdemeanor unlawful sexual intercourse is two years in county jail (one year on each count), so three years would seem to be the maximum term of probation authorized by

section 1203a. See id. Nonetheless, we decline the government’s invitation to rely on that apparent inconsistency as support for the conclusion that Viezcas-Soto was convicted of a felony

section 261.5(

c) offense. It was the government’s burden to prove the prior offense was “punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2(b)(1)(A)(ii), cmt. n. 2. At best, the record stands in equipoise on that issue and, as such, the government has not met its burden. Accordingly, on the current record, the sixteen-level enhancement was erroneously imposed. A nonharmless error in the calculation of the applicable Guidelines range requires that a reviewing court vacate the sentence and remand for resentencing. Weems, 517 F.3d at 1030.

Here, application of the enhancement resulted in a higher advisory range than would have been applicable otherwise, and brought the statutory maximum sentence into play. See id. (finding that a Guidelines miscalculation was not harmless under comparable circumstances). The government suggests, however, that the district court would have imposed the same sentence even without the enhancement. We do note that at the sentencing hearing, the district court discussed Viezcas-Soto’s earlier conviction for illegal reentry in the Western District of Oklahoma and the resulting twenty-four month sentence.

And in imposing the sentence, the court concluded: the bottom line is ... he was given a two-year sentence, told not to come back to the United States unless he does so legally, and he did. And so he’s got to get at least the same sentence as he got before. And so I’m sentencing him to the 24 months, which is the same as he got the last time, and hope that he figures out that he’s not supposed to come back here unless he does so legally.

Nonetheless, “to support a finding of harmless error, the record clearly must show not only that the district court intended to provide an alternative sentence, but also that the alternative sentence is based on an identifiable, correctly calculated guidelines range.” United States v. Icaza, 492 F.3d 967, 971 (8th Cir.2007). And here, at sentencing, the district court did not identify an alternative Guidelines range without the disputed enhancement and explain a variance therefrom based on the factors delineated in 18 U.S.C. § 3553(a).

Thus, on the record before us, we cannot conclude that the Guidelines miscalculation was harmless error. See Icaza, 492 F.3d at 971. III. CONCLUSION For the foregoing reasons, we vacate Viezcas-Soto’s sentence and remand his case to the district court for resentencing. . Although

section 261.5 creates several distinct offenses and the information does not specify the applicable subsection, the parties agree Viezcas-Soto was convicted of violating

section 261.5(c). That subsection makes it unlawful for a person eighteen or older to have intercourse with a person who is under eighteen and at least three years younger than the perpetrator. . Robert L. v. Superior Court, 30 Cal.4th 894, 135 Cal.Rptr.2d 30, 69 P.3d 951, 956 n. 9 (2003) (noting that an offense punishable either by imprisonment in the state prison or by a county jail sentence is "said to 'wobble' between the two punishments and hence is frequently called a ‘wobbler’ offense") (quotation omitted). .

Moreover, the most apposite authority we have found on point suggests California courts might resolve any inconsistency in Viezcas-Soto's favor. See Daoud, 16 Cal.3d 879, 129 Cal.Rptr. 673, 549 P.2d at 147-49 & 147 n. 4 (concluding that where a judge imposed a suspended jail sentence on a wobbler offense, but thereafter tried to extend probation beyond the term authorized for misdemeanors, the offense became a misdemeanor upon imposition of the jail term and the probation order would be interpreted as imposing the maximum misdemeanor probation term).