Garza-Mendez: Not bound by state court "clarification"

In U.S. v. Garza-Mendez, No. 12-13643 (Nov. 15, 2013), the Court (2-1) affirmed the imposition of an 8-level increase under U.S.S.G. § 2L1.2(b)(1)(C), finding that Garza-Mendez’ prior Georgia conviction for family-violence battery qualified as an “aggravated felony.” The Gwinnett County, Georgia 2007 judgment for Garza-Mendez’ family-violence battery stated that the was sentenced to 12 months of “confinement in the Gwinnett County Comprehensive Correctional Complex.” In 2012, Garza-Mendez obtained a “clarification” from another Gwinnett County judge stating that this was for 12 months of probation, not twelve months of incarceration. Under § 2L1.12(b)(1), a prior conviction counts as an aggravated felony if the defendant was sentenced to 12 months or more of incarceration. The Court held that it was not bound by the “clarification,” but by the original judgment which “could not be any clearer” that Garza-Mendez was sentenced to 12 months of “confinement.” The Court found no abuse of discretion in the district court’s declining to accord a downward departure or variance based on cultural assimilation, citing the district court’s finding that Garza-Mendez had a history of serious offenses, and that cultural assimilation refers to aliens who have “lived lawfully,” not to those who “haven’t been be able to do that.” Finally, the Court affirmed the district court’s requirement that Garza-Mendez report from Mexico to his probation officer during his three-year term of supervised release, after deportation. The Court cited the district court’s finding that extraterritorial reporting was appropriate in light of Garza-Mendez prior illegal re-entry.