U.S. v. Gonzales ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-1527
UNITED STATES OF AMERICA Petitioners-Appellee
versus
JUAN RUBEN GONZALES Defendant-Appellant
Appeal from The United States District Court
for The Northern District of Texas
(March 29, 1993)
Before WISDOM and DUHE, Circuit Judges and HAIK,1 District
Judge.
HAIK, District Judge:
Juan Ruben Gonzales, appellant, was charged by indictment with
a violation of 8 U.S.C. Section 1326, Reentry of a Deported Alien.
He pled guilty and was sentenced to eighty-six months in custody,
three years of supervised release, and ordered to pay a mandatory
special assessment fee of $50.00. The District Court sentenced
Gonzales under the guidelines which were in effect at the time he
was sentenced. Gonzales contends that he should have been
sentenced pursuant to the guidelines which were in effect at the
time he reentered the United States. We affirm the District Court.
1
District Judge of the Western District of Louisiana,
sitting by designation.
FACTS
On August 27, 1979 Gonzales was granted permanent residency
status. In 1989, he was convicted of an aggravated felony2. On
April 24, 1991, as a result of his conviction, he was remanded into
the custody of the Immigration and Naturalization Service and
deported from the United States as an aggravated felon. Gonzales
made a speedy return to the United States. He was back over the
border within hours of his deportation, staying with relatives in
Dallas. He remained there as an illegal alien until he was
discovered and arrested on November 21, 1991.
The district court enhanced appellant's base offense level by
sixteen levels pursuant to U.S. Sentencing Guidelines Section
2L1.2(b)(2), an amendment to the guidelines which became effective
November 1, 1991. The district court ruled that there was no ex
post facto problem which would entitle Gonzales to be sentenced
under an earlier and more lenient version of the guidelines.
DISCUSSION
Gonzales argues that the district court should have applied
the guidelines in effect at the time he entered the country rather
than when he was found in the country. An application of the
guidelines prior to the amendment would result in a decrease of
twelve offense levels, and thereby reduce his sentence.
Gonzales contends that he violated 8 U.S.C. Section 1326 on
2
The Presentence Report indicates that Gonzales was
convicted of "Unlawful Possession with Intent to Deliver a
controlled Substance" and was sentenced to serve fifteen years.
2
April 25, 1991 when he reentered the United States. He claims the
application of the sentencing guidelines in effect on November 1,
1991 for a crime committed on April 25, 1991 constitutes a
violation of the ex post facto clause of the United States
Constitution.
The guidelines in effect at the time of sentencing are the
appropriate source for determining a sentence absent an ex post
facto problem. U.S. v. Ainsworth, 932 F.2d 358, 362 (5th Cir.),
cert. denied, _____ U.S. _____, 112 S. Ct. 327, 346 (1991). A
criminal law is ex post facto if it is retrospective and
disadvantages the offender by altering substantial personal rights.
Miller v. Florida, 482 U.S. 423, 430 (1987).
We need not decide whether the guidelines as amended are
retrospective because Gonzales committed the offense after November
1, 1991 when the amendment became effective. The clear language in
8 U.S.C. Section 1326(a)(2) provides three separate occasions upon
which a deported alien may commit the offense: 1) when one
illegally enters the United States; 2) attempts to illegally enter
the United States; or 3) when a deported alien is found at any time
in the United States. The plain words of the statute set out
discrete points in time when the crime may be committed.
One of the three means of committing the offense outlined in
8 U.S.C. 1326(a)(2) is to be a deported alien found within the
borders of the United States. Gonzales admits that he was
discovered after the effective date of the amendment to the
sentencing guidelines. He was charged by indictment with having
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illegally entered the United States and having been found as an
illegal alien. He pled guilty to this charge and admitted to the
underlying facts as presented by the government at the time of his
plea.
The government's argument that petitioner should be sentenced
under the new version of the guidelines is well founded. There are
no ex post facto consequences. The district court properly applied
the amended version of the guidelines when determining the
appropriate sentence for Gonzales.
We AFFIRM the sentence handed down by the district court.
4