United States v. DeLeon-Rodriguez ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
11-30-1995
United States of America v. DeLeon-Rodriguez
Precedential or Non-Precedential:
Docket 95-1299
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-1299
___________
UNITED STATES OF AMERICA
v.
JESUS RHADAMES DELEON-RODRIGUEZ
Jesus Rhadames-Rodriguez,
Appellant
_______________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 94-cr-00447)
___________________
Argued October 19, 1995
Before: SCIRICA, COWEN and ROTH, Circuit Judges
(Filed November 30, 1995)
DAVID L. McCOLGIN, ESQUIRE (ARGUED)
ELAINE DeMASSE, ESQUIRE
Defender Association of Philadelphia
Federal Court Division
Lafayette Building, Suite 800
437 Chestnut Street
Philadelphia, Pennsylvania 19106-2414
Attorneys for Appellant
TIMOTHY S. SUSANIN, ESQUIRE (ARGUED)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorney for Appellee
1
2
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
The central issue in this criminal appeal is whether
8 U.S.C. § 1326(b)(2) makes a prior conviction for an aggravated
felony an element of the offense, requiring proof for conviction,
or whether it is a penalty enhancement provision under 8 U.S.C.
§ 1326(a), which sets forth the elements of the offense.
I.
On May 14, 1990, Jesus Rhadames DeLeon-Rodriguez, a
citizen of the Dominican Republic, was convicted of delivery of
cocaine in the Court of Common Pleas of Berks County,
Pennsylvania and sentenced to eighteen to sixty months
imprisonment. As a result of his conviction he was deported to
the Dominican Republic on May 17, 1991.
On July 28, 1994 Rodriguez was again arrested in Berks
County on drug related charges. After notification by the local
police, the Immigration and Naturalization Service interviewed
Rodriguez about his immigration status. During the interview
Rodriguez admitted he had been deported in 1991 and that he had
illegally reentered the United States in 1993 by boat at
San Juan, Puerto Rico. After receiving Miranda warnings,
Rodriguez invoked his right to counsel and no further questions
were asked.
3
Rodriguez was charged by the government with illegal
reentry after deportation in violation of 8 U.S.C. § 1326(b)(2)
(1994), which provides:
Notwithstanding subsection (a) of this
section, in the case of any alien described
in such subsection . . .
(2) whose deportation 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.1
1
1. 8 U.S.C. § 1326 (1994) provides:
(a) Subject to subsection (b) of this section, any alien
who-
(1) has been arrested and deported or
excluded and deported, and thereafter
(2) enters, attempts to enter, or is at any
time found in, the United States, unless (A)
prior to his reembarkation at a place outside
the United States or his application for
admission from foreign contiguous territory,
the Attorney General has expressly consented
to such alien's reapplying for admission; or
(B) with respect to an alien previously
excluded and deported, unless such alien
shall establish that he was not required to
obtain such advance consent under this
chapter of any prior Act,
shall be fined under Title 18, or imprisoned not more than
2 years, or both.
(b) Notwithstanding subsection (a) of this section, in
the case of any alien described in such subsection --
(l) whose deportation was subsequent to a
conviction for commission of three or more
misdemeanors involving drugs, crimes against
the person, or both, or a felony (other than
an aggravated felony), such alien shall be
fined under Title l8, imprisoned not more
than l0 years, or both; or
(2) whose deportation 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.
4
Rodriguez was convicted at a bench trial and sentenced to
seventy-two months imprisonment.2 This appeal followed. We have
jurisdiction under 28 U.S.C. § 1291, as well as 18 U.S.C.
3742(a). United States v. Shoupe, 988 F.2d 440 (3d Cir. 1993).
II.
The principal question raised in this appeal is whether
a prior conviction for an aggravated felony is an element of
8 U.S.C. § 1326(b)(2) or simply a condition triggering an
enhanced penalty. At trial, Rodriguez sought dismissal of his
indictment for failure to state an offense, because it omitted
what he claims is an essential element of the offense --
deportation subsequent to a conviction for an aggravated felony.
The district court held this was not an element of the offense
and denied the motion.3 We exercise plenary review.
Several other circuits have already addressed this
issue.4 Of those, all but one has held that § 1326(b)(2) is a
2
2. At sentencing, the district court determined that Rodriguez
had been deported after commission of an aggravated felony.
3
3. The district court also determined that Rodriguez's motion
to dismiss the indictment based on this alleged defect was
untimely. On appeal, the government did not argue timeliness or
waiver. Fed. R. Crim. P. 12(f) vests a district court with
general power to determine that a party has waived a right to
object or raise a defense after having failed to advance it in a
timely manner. Yet Fed. R. Crim. P. 12(b)(2) delineates two
objections, or defenses, which "shall be noticed by the court at
any time during the pendency of the proceedings"--a failure to
show jurisdiction in the court and a failure to charge an
offense. See United States v. Cury, 313 F.2d 337, 343 (3d Cir.
1963). In view of this, we believe the motion was timely.
4
4. In United States v. Eversley, 55 F.3d 870 (3d Cir. 1995), we
explained "we need not address the question ... whether
§1326(b)(1) and (2) constitute sentence enhancement provisions
rather than offenses distinct from § 1326(a)." Id. at 871 n.3.
5
sentencing enhancement provision. See United States v. Palacios-
Casquete, 55 F.3d 557, 559 (11th Cir. 1995), petition for cert.
filed (Sept. 5, 1995) (No. 95-5849); United States v. Munoz-
Cerna, 47 F.3d 207, 210 n.6 (7th Cir. 1995) ("the better view is
that the subsections [of § 1326] are sentence enhancements);
United States v. Cole, 32 F.3d 16, 18 (2d Cir.), cert. denied,
115 S. Ct. 497 (1994); United States v. Crawford, 18 F.3d 1173,
1177 (4th Cir.), cert. denied, 115 S. Ct. 171 (1994); United
States v. Forbes, 16 F.3d 1294, 1297-30 (1st Cir. 1994); United
States v. Vasquez-Olvera, 999 F.2d 943, 945 (5th Cir. 1993),
cert. denied, 114 S. Ct. 889 (1994); but see United States v.
Campos-Martinez, 976 F.2d 589 (9th Cir. 1992). Upon examining
the language and structure of § 1326(b), we too are convinced it
is a sentencing enhancement provision rather than an offense
distinct from § 1326(a).
Section 1326(a) sets out the elements of the offense
(arrest, deportation, and re-entry) and certain penalties (fine
and two-year maximum imprisonment), while subsection (b)(2) sets
forth no elements but only provides for stiffer penalties based
on criminal history (after conviction of an aggravated felony).
Section 1326(b) itself sets forth no elements of an offense.5 The
language and structure make clear that § 1326 is a sentencing
enhancement provision only.
The Court of Appeals for the Second Circuit shares our
view that the structure of § 1326 as a whole demonstrates that
5
5. Section 1326(b) is set out in full in footnote 1.
6
§1326(b) is an enhancement provision. United States v. Cole, 32
F.3d at 18. The Courts of Appeals for the Fourth and Fifth
Circuits reached the same conclusion under a "plain language"
analysis of § 1326. Crawford, 18 F.3d at 1177; Vasquez-Olvera,
999 F.2d at 945.
In addition, the title assigned to § 1326 supports the
view that it outlines a single offense with varying penalties.
Before the 1988 amendments, the section was entitled "Reentry of
deported alien;" after the amendments, it reads ""Reentry of
deported alien; criminal penalties for reentry of certain
deported aliens." 8 U.S.C. § 1326. As the Fourth Circuit
explained, "[t]his change in title indicates that, by amending
§1326, Congress intended to create enhanced penalties for
'certain' aliens who commit the underlying offense of unlawfully
reentering the United States after having been previously
deported, not to create a separate substantive offense."
Crawford, 18 F.3d at 1177; see also Vasquez-Olvera, 999 F.2d at
945; Palacios-Casquete, 55 F.3d at 560 (looking to "evolution of
§ 1326 through its various amendments" to conclude it defines one
substantive crime).
The Court of Appeals for the First Circuit also
construes § 1326(b) as an enhancement provision, but relies
principally on a public policy argument. Referring to
evidentiary rules and decisional law, the court found strong
policy reasons to exclude or limit information about prior
convictions at trial, citing the possibility of undue prejudice.
Interpreting § 1326(b) to require proof at trial of conviction of
7
a prior offense would contravene this principle. In the absence
of explicit congressional direction, the court explained it was
"reluctant to impose that burden on defendants." Forbes, 16 F.3d
at 1300.
Only the Court of Appeals for the Ninth Circuit has
reached the conclusion that § 1326(b)(2) is not an enhancement
provision. The first appellate court to consider the question,
it found the different subsections of 8 U.S.C. § 1326 delineate
separate offenses, the elements of which must be proven at trial,
not just at sentencing. See, e.g., United States v. Arias-
Granados, 941 F.2d 996 (9th Cir. 1991); United States v.
Gonzales-Medina, 976 F.2d 570 (9th Cir. 1992); United States v.
Campos-Martinez, 976 F.2d 589 (9th Cir. 1992). While two earlier
Ninth Circuit panels reached this conclusion without explanation,
in United States v. Campos-Martinez, the Ninth Circuit set forth
the reasons for its holding. Although citing the precedent of
Arias-Granados, the court relied on its interpretation of 8
U.S.C. § 1325 as a guide in interpreting § 1326.6 Section
6
6. 8 U.S.C. § 1325(a) (1994) provides:
Any alien who (1) enters or attempts to enter
the United States at any time or place other
than as designated by immigration officers,
or (2) eludes examination or inspection by
immigration officers, or (3) attempts to
enter or obtains entry to the United States
by a willfully false or misleading
representation or the willful concealment of
a material fact, shall, for the first
commission of any such offense, be fined
under Title 18 or imprisoned not more than 6
months, or both, and, for a subsequent
commission of any such offense, be fined
8
1325(a) makes illegal entry a crime with a maximum sentence of
six months imprisonment. The same section provides that illegal
entry after a previous conviction for illegal entry is a separate
crime with a maximum two year sentence. Campos-Martinez, 976
F.2d at 591. The court found that because "[s]ections 1325 and
1326 are similar in structure, operation, purpose, and subject
matter . . . section 1325 provides the best analogy" available in
interpreting § 1326, and therefore § 1326 ought to be understood
as delineating distinct offenses. Id. at 592.
We are not convinced. Instead, like the Second, Fourth
and Fifth Circuits, we believe the language and structure of
§ 1326 establish that § 1326(b)(2) is a sentencing enhancement
provision rather than an offense distinct from § 1326(a). We
will affirm the district court's denial of Rodriguez's motion to
dismiss the indictment on the grounds it failed to state an
offense.
III.
Rodriguez contends the district court should have
granted him a reduction in his offense level for having "accepted
responsibility," under U.S.S.G. § 3E1.1.(a)(1994), which permits
a reduction "[i]f the defendant clearly demonstrates acceptance
of responsibility for his offense."
Whether a defendant has "accepted responsibility" is a
factual matter and is reviewed under a "clearly erroneous"
standard. See United States v. Rodriguez, 975 F.2d 999, 1008
under Title 18, or imprisoned not more than 2
years, or both.
9
(3d Cir. 1992). "The sentencing judge is in a unique position to
evaluate a defendant's acceptance of responsibility. For this
reason, the determination of the sentencing judge is entitled to
great deference on review." Application Note 5 to U.S.S.G.
§ 3E1.1.
A defendant bears the burden of establishing by a
preponderance of the evidence that a reduction under this
provision is warranted. Rodriguez, 975 F.2d at 1008. Rodriguez
advanced several factors to support his request for an offense
level reduction. Looking to his pretrial conduct, Rodriguez
characterizes his interview with the INS agent as a "confession."
Brief for Appellant at 4. As for his subsequent conduct, he
contends that at trial he "did not contest any of the factual
allegations of the government . . . did not deny or even move to
suppress [his] confession, and . . . did not present any
evidence." Brief for Appellant at 5. Moreover, Rodriguez
characterizes his objections during trial as "purely legal ones,"
and points to his limited cross-examination of the government's
witnesses. Also, near the end of the trial, Rodriguez sought to
enter a Zudick guilty plea, conditioned on a determination of a
preserved appellate issue. United States v. Zudick, 523 F.2d
848, 851 (3d Cir. 1975). Overall, Rodriguez contends he
effectively left unchallenged the government's case against him
and contested only selected legal issues but not the central fact
of the case -- that he had illegally reentered the United States
after deportation.
10
The district court disagreed. It found that
Rodriguez's brief initial statements during the interview with
the INS agent did not manifest an acceptance of responsibility.
Furthermore, the court found the government was "put to the test
in its offering of evidence." Among other challenges, Rodriguez
contested the testimony of the police officer who found him in
the United States subsequent to deportation; questioned the
relevance of the government's evidence on INS deportation
procedures and the credibility of evidence in the INS file;
cross-examined the government's witness about his personal
knowledge of Rodriguez's deportation; attacked the quality and
accuracy of the government's fingerprint evidence; and sought to
exclude INS exhibits and documentary evidence which went to an
essential element of the offense and to the heart of the
prosecution's case.
After examining the record we find no error.
Application Note 2 to § 3E1.1 explains that a reduction is
generally not meant to apply to a defendant who puts the
government to its burden of proof at trial. While the
Application Note adds that "[c]onviction by trial . . . does not
automatically preclude a defendant from consideration for such a
reduction," it suggests that a reduction should be granted only
in "rare situations," such as when a "defendant goes to trial to
assert and preserve issues that do not relate to factual guilt
(e.g., to make a constitutional challenge to a statute or a
challenge to the applicability of a statute to his conduct)." The
district court found that Rodriguez "contested his factual guilt
11
. . . beyond a mere legal challenge." Appendix at 136a. We
agree.
IV.
We will affirm the judgment of conviction and sentence.
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