No. 97-5088 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 AGUILES AMAYA-ALVARADO, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General WILLIAM C. BROWN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the district court properly increased petitioner's offense level by 16 levels under Sentencing Guidelines 2L1.2(b) (2) because, before he was convicted under 8 U.S.C. 1326 of illegally reentering the United States after having been deported, he had sustained a conviction for an aggravated felony. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 97-5088 AGUILES AMAYA-ALVARADO, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPINION BELOW OPPOSITION The decision of the court of appeals (Pet. App. 1-3) is not published, but the judgment is noted at 111 F.3d 893 (Table) . JURISDICTION The judgment of the court of appeals was entered on March 28, 1997. The petition for a writ of certiorari was filed on July 3, 1997, and thus is out of time under this Court's Rule 13. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . STATEMENT Following a guilty plea in the United States District Court for the Eastern District of Texas, petitioner was convicted of ---------------------------------------- Page Break ---------------------------------------- 2 reentering the United States, after having been deported, without the prior consent of the Attorney General to reapply for admission, in Violation of 8 U.S.C. 1326. He was sentenced to 46 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. Pet. App. 1-3. 1. Petitioner is a citizen of El Salvador who initially entered the United States illegally in 1984. Presentence Report (PSR) 8. On February 13, 1989, he entered a guilty plea in state court in Dallas County, Texas, to the charge of burglary of a habitation. ID. at 6. On February 21, 1990, he was adjudicated guilty and was sentenced to ten years' imprisonment. Ibid .; Pet. App. 2. On December 17, 1990, state officials released petitioner to the Immigration and Naturalization Service (INS) . Id. at 6-7. In February 1991, the INS deported petitioner from the United States. Pet. App. 2. On December 6, 1995, petitioner was arrested in Texas on a state charge, and investigation revealed that he was not a legal resident of the United States. PSR 4. The INS interviewed petitioner who admitted that, after his deportation in 1991, he had reentered the United States illegally, via the Rio Grande River, on January 25, 1994. Ibid.; Pet. App. 2. Further investigation revealed that petitioner had not received the prior consent of the Attorney General to reapply for admission, as ---------------------------------------- Page Break ---------------------------------------- 3 required under 8 U.S.C. 1326, when an alien who has been previously deported returns to the United States. PSR 4.1 Section 1326(a) provides that, subject to Section 1326(b), a previously deported alien who reenters the country without obtaining the prior consent of the Attorney General to reapply for admission shall be sentenced to a term of imprisonment up to two years, or fined under Title 18, or both. Section 1326(b) (1) I authorizes a term of imprisonment of up to 10 years in a case where an alien who commits such an offense was convicted of a nonaggravated felony (or three misdemeanors for specified offenses) before his deportation. Section 1326(b) (2) authorizes a term of imprisonment of up to 20 years in a case where an alien who commits such an offense was convicted of an aggravated felony before his deportation. The term "aggravated felony," for purposes of 8 U.S.C. 1326, is defined in 8 U.S.C. 11O1(a) (43) . 2. On December 13, 1995, petitioner was indicted in the United States District Court for the Eastern District of Texas on one count of having been found" in the United States on or about December 6, 1995, after having been previously deported, without ___________________(footnotes) 1 Congress amended Section 1326 on April 24, 1996, and on September 30, 1996, but the changes effected by those amendments are not relevant to the disposition of this case except as specifically noted below. See Antiterrorism and Effective Death penalty Act of 1996, Pub. L. No. 104-132, Title IV, 401(C), 438(b), 441(a), 110 Stat. 1267-1268, 1276, 1279; Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, Title III 305(b), 308(d) (4) (J), 308(e) (1) (K), 308(e) (14) (A) 324, 110 Stat. 3009- 606, 3009-618, 3009-619, 3009-620, 3009-629. Unless otherwise indicated, references to Section 1326 and other provisions of Title 8 are to the version in effect at the time of petitioner's Section 1326 offense. ---------------------------------------- Page Break ---------------------------------------- 4 having obtained the consent of the Attorney General to reapply for admission, in violation of 8 U.S.C. 1326. C.A. E.R. Item 2. The indictment also alleged that petitioner had been convicted of an aggravated felony before his deportation. The indictment stated that the offense carried a penalty of imprisonment of not more than 20 years, a fine, or both. Ibid On February 1, 1996, pursuant to a written agreement, petitioner entered a plea of guilty to the-indictment. The written plea agreement was signed by petitioner, his counsel, and government counsel, and stated that petitioner understood that the maximum term of imprisonment for the criminal violation to which he was pleading guilty was 20 years, and that his sentence would be imposed in accordance with the federal Sentencing Guidelines. C.A.E.R. Item 3. Petitioner waived any right to appeal, except regarding issues relating to the application of the Guidelines or the basis for any upward departure. Ibid The presentence report stated that the maximum term of imprisonment authorized by statute in petitioner's case was 20 years, PSR 1. Under the Sentencing Guidelines, however, petitioner's applicable sentence was determined to be less than five years' imprisonment. The report indicated that the base offense level for violation of 8 U.S.C. 1326 is 8, pursuant to Sentencing Guidelines 2L1.2(a) . PSR 4. It also indicated that, in light of petitioner's conviction for burglary before his deportation, a 16-level upward adjustment of the offense level was warranted pursuant to Sentencing Guidelines 2L1.2(b) (2) ---------------------------------------- Page Break ---------------------------------------- 5 which provides that "[if] the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels." Id. at 52 After application of a three-level reduction for acceptance of responsibility, petitioner's total offense level was determined to be 21. Because he was in Criminal History Category III, the applicable sentencing range was 46. to 57 months' imprisonment. PSR 5, 7, 10. Petitioner objected to the increase in the offense level under Guidelines 2L1.2 (b) (2) based on his 1989 burglary conviction. PSR 1A. He contended that a 1990 amendment to the statutory definition of aggravated felony, 8 U.S.C. 1101(a) (43) , which expanded the definition to include crimes of violence such as burglary for which a term of imprisonment of at least five years is imposed (see Immigration Act of 1990, Pub. L. No. 101- ___________________(footnotes) 2 For purposes of Sentencing Guidelines S 2L1.2(b) (2), "aggravated felony" is defined as follows: "Aggravated felony, " as used in subsection (b) (2), means murder; any illicit trafficking in any controlled substance (as defined in 21 U.S.C. 802), including any drug trafficking crime as defined in 18 U.S.C. 924(c) (2); any illicit trafficking in any firearms or destructive devices as defined in 18 U.S.C. 921; any offense described in 18 U.S.C. 1956 (relating to laundering of monetary instruments) ; any crime of violence (as defined in 18 U.S.C. 16, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years; or any attempt or conspiracy to commit any such act. The term "aggravated felony" applies to offenses described in the previous sentence whether in violation of federal or state law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years. 8 U.S.C. 1101(a) (43). Guidelines 2L1.2 (b) (2), Application Note 7. --------------------------------------- Page Break ---------------------------------------- 6 649, 501(a), 104 Stat. 5048), applied only in cases where the prior aggravated felony had been committed after the effective date of the statutory amendment, i.e November 29, 1990. He contended that that statutory provision and its effective date also controlled the applicability of the Guidelines' aggravated felony enhancement, 2L1.2(b) (2). Thus, because petitioner's burglary conviction predated the expansion of the statutory definition, petitioner maintained that his conviction could not be treated as an aggravated felony that increased his Guidelines offense level. The government, responded that the presentence report correctly treated petitioner's prior burglary conviction as an aggravated felony for purposes of Guidelines 2L1.2(b) (2), and that the Fifth Circuit had held that Guidelines 2L1.2 (b) (2) is applicable in cases where the prior aggravated felony was committed before November 19, 1990. Gov't April 11, 1996, Response 3 (citing United States v. Garcia-Rico, 46 F.3d 8 (5th Cir.), cert. denied, 515 U.S. 1150 (1995)) . The district court rejected petitioner's contention, adopted the findings and calculations of the presentence report, and sentenced petitioner to 46 months' imprisonment, to be followed by three years' supervised release. May 1, 1996, Tr. 5-9. 3. The court of appeals affirmed. Pet. App. 1-3. It rejected petitioner's contention that, because burglary of a habitation was not, at the time he committed it, an aggravated felony under the pertinent statutory provisions (8 U.S.C. 11O1(a) (43), 1326), the enhancement of his offense level under ---------------------------------------- Page Break ---------------------------------------- 7 the Sentencing Guidelines was incorrect. Id. at 2-3. The court noted that petitioner conceded that the court had rejected his precise argument in Garcia-Rico, supra. The court reiterated that "the amended definition of aggravated felonies in 8 U.S.C. 1101(a) (43) , which now includes [petitioner's] 1989 conviction for burglary, applies to an `offense' committed on or after I November 29, 1990. * * * [T]he relevant `offense' that must coincide with or post-date November 29, 1990, is the illegal entry into the United States, not the predicate aggravated felony." Id. at 2 (quoting Garcia-Rico, 46 F.3d at 10). The court acknowledged that the Ninth Circuit adopted petitioner's Position in United States v. Gomez-Rodriguez, 96 F.3d 1262, 1265 (9th Cir. 1996) (en bane) . The court found no basis in the record of the instant case, however, to justify departing from the binding precedent of Garcia-Rico. Pet. App. 2-3. ARGUMENT Petitioner maintains (Pet. 17-18) that, because his burglary conviction predated the November 29, 1990, effective date of the amendment expanding the statutory definition of aggravated felony to include such crimes of violence, see Pub. L. No. 101-649, 501(a), 104 Stat. 5048, that conviction cannot be treated as an aggravated felony that supports a 16-level increase in his offense level under Sentencing Guidelines 2L1.2 (b) (2) . ---------------------------------------- Page Break ---------------------------------------- 8 That contention lacks merit and does not warrant this Court(s) review.3 1. The Sentencing Guidelines amendment that added Guidelines 2LI.2 (b) (2) and the related commentary defining an "aggravated felony" as used in that Guideline became effective November 1, 1991. United States Sentencing Comm'n, Guidelines Manual (Nov. 1, 1995) (Amendment 375). Where the Ex Post Facto Clause does not require otherwise, courts are generally required to apply the Sentencing Guidelines in effect on the date a defendant is sentenced. See 18 U.S.C. 3553 (a) (4) (A); United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.) , cert. denied, 510 U.S. 858 (1993). Therefore, if a defendant violates Section 1326 after November 1, 1991, a prior aggravated felony conviction triggers the 16-level enhancement under Guidelines 2L1.2(b) (2) for sentencing purposes, regardless whether the aggravated felony conviction itself occurred before or after November 1, 1991. Because petitioner violated Section 1326 in 1995, the court of appeals correctly upheld the enhancement of petitioner's offense level under Guidelines 2L1.2 (b) (2). The aggravated-felony definition in the commentary to Sentencing Guidelines 2L1.2 does not contain the same effective-date provision as the one that accompanied the November ___________________(footnotes) 3 The Court recently denied review in three cases raising the same issue and there is no reason for a different result here. See Campbell v. United States, No. 96-6825, cert. denied, 117 s. Ct. 1847 (May 27, 1997) ; Morales-Lopez v. United States, No. 96-7640, cert. denied, 117 S. Ct. 1848 (MAY 27, 1997); Bermudez-Reyes v. United States, No. 96-6714, cert. denied, 117 S. Ct. 1258 (March 17, 1997) . ---------------------------------------- Page Break ---------------------------------------- 9 29, 1990, amendment to 8 U.S.C. 1101 (a) (43). Several courts of appeals have correctly recognized that the 16-level enhancement under Guidelines 2L1.2 (b) (2) therefore applies where a prior offense is defined as an aggravated felony for purposes of that Guidelines at the time of sentencing, even if it was not defined as an aggravated felony under either the Guidelines or the statute at the time of conviction of that prior offense. See, e.g.,United States Varanda-Hernandez, 95 F.3d 977 (l0th Cir. I 1996) (approving Section 2L1.2(b) (2) enhancement based on 1984 drug conviction), cert. denied, 117 S. Ct. 1314 (1997); United States v. Campbell, 94 F.3d 125, 128 (4th Cir. 1996) (1989) manslaughter conviction) , cert. denied, 117-S. Ct. 1847 (1997) ; United States v. Cabrera-Sosa, 81 F.3d 998, 1000-1001 (lOth Cir.) (1990 drug conviction), cert. denied, 117 S. Ct. 218 (1996); United States v. Munoz-Cerna, 47 F.3d 207, 209-212 (7th Cir. 1995) (March 1990 crime of violence conviction); United States v. Garcia-Rico, 46 F.3d at 10 (January 1990 manslaughter I conviction) ; United States v. Saenz-Forero, 27 F.3d 1016, 1020- 1021 (5th Cir. 1994) (1985 drug conviction) ; United States v. Maul-Valverde, 10 F.3d 544, 546 (8th Cir. 1993) (1977 burglary conviction) . The Ninth Circuit, however, has held that the Guidelines' aggravated felony enhancement depends on the effective date of the statutory amendment. In United States v. Fuentes-Barahona, 111 F.3d 651 (9th Cir. 1997) , the court held that the citation to 8 U.S.C. 1101(43) in Application Note 7 to Guidelines 2L1.2 ---------------------------------------- Page Break ---------------------------------------- 10 (see note 2, supra ), created an ambiguity as to whether the statutory effective date should apply to the Guideline as well. Relying on the rule of lenity, the court therefore barred the application of the Guidelines' enhancement where the prior offense was not an aggravated felony under that court's interpretation of the statutory definition in 8 U.S.C. 1101 (a) (43) at the time the prior offense was committed. Fuentes-Barahona, 111 F.3d at 652-653. In our view, Fuentes-Barahona is incorrect. There is no foundation for the suggestion that the citation to Section 1101(a) (43) in Application Note 7 incorporates sub silentio the statutory effective-date provision into Guidelines 2L1.2 (b) (2). The cited codification of the statutory section does not contain the statutory effective-date language. In any event, the disagreement between the decision below and Fuentes-Barahona on the interpretation of Guidelines 2L1.2 does not warrant this Court's review. The Sentencing Commission is charged with " [periodically reviewing] the work of the courts, and [making] whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest. " Braxton v. United States, 500 U.S. 344, 348 (1991). Circuit conflicts on issues of Guidelines interpretation are thus not ordinarily a reason to grant certiorari. Indeed, the Sentencing Commission has now proposed an amendment to Guidelines 2L1.2 that will resolve this issue in a manner consistent with the decision of the court below. The proposed amendment would delete ---------------------------------------- Page Break ---------------------------------------- 11 the current definition of aggravated felony in Guidelines 2L1.2(b)(2), Application Note 7 and, in lieu of it, would adopt the aggravated felony definition set out in 8 U.S.C. 1101(a) (43) "without regard to the date of conviction of the aggravated felony." 62 Fed. Reg. 26,616, 26,630 (May 14, 1997). Subject to review by Congress, the amended Guidelines provision will go into effect. on November 1, 1997. 2. Even if application of Guidelines 2L1.2 (b) (2) were limited by the effective date of the statutory amendment to 8 U.S.C. 1101(a) (43) that added crimes of violence, it would not assist petitioner.4 Before 1990, the definition of an ___________________(footnotes) 4 Although petitioner devotes most of his petition to the effective date of the statutory amendment (Pet. 4-17) , his legal challenge is necessarily limited to the offense-level enhancement under Guidelines 2L1.2(b) (2) because the amendment to 8 U.S.C. 1101(a) (43), broadening the definition of aggravated felony for purposes of 8 U.S.C. 1326(b) (2), had no impact on his case. Although petitioner was notified, before his plea and sentencing, that the statutory maximum authorized in his case was 20 years under 8 U.S.C. 1326(b) (2) because of the prior aggravated felony conviction that preceded his deportation, the term of imprisonment actually imposed, 46 months, was less than the 10- year imprisonment term authorized under 8 U.S.C. 1326(b) (1) in cases involving convictions of aggravated felonies before deportation. Thus , even if petitioner's prior burglary conviction had constituted only a aggravated felony for purposes of 8 U.S.C. 1326, his sentence was fully authorized by Section 1326(b) (l). Several courts of appeals have held that a defendant who pleads guilty under 8 U.S.C. 1326(b) (1) can receive the 16-level aggravated felony enhancernent under Guidelines 2L1.2 (b) (2) . See, United States v. Eversley, 55 F.3d 870, 872 (3d Cir. 1995) ("The structure and language of the guidelines make clear that subsection (b) (2) of 2L1.2 applies to violations of 1326.") ; United States v. Pens-Carrillo, 46 F.3d 879, 883-885 (9th Cir.) (16-level Guideline enhancement properly applied even where Section 1326(b) (2) increase in maximum punishment did not apply) , cert. denied, 514 U.S. 1122 (1995); United States v. Frias-Trujillo, 9 F.3d 875, 877-878 (l0th Cir. 1993) [ T]here is ---------------------------------------- Page Break ---------------------------------------- 12 "aggravated felony" in 8 U.S.C. 1101 (a) (43) did not include crimes of violence. In 1990, Congress expanded the aggravated felony definition in Section 1101(a) (43) to include, among other I things, crimes of violence for which the term of imprisonment imposed is at least five years. Immigration Act of 1990 (1990 Act), pub. L. No. 101-649, 501(a) (3) , 104 Stat. 5048. The relevant effective date section provided, in pertinent part, that the amendments to the definition "shall apply to offenses committed on or after the date of the enactment of this Act," i.e November 29, 1990. Id. at 501(b), 104 Stat. 5048. The court below and the Fourth Circuit have construed the term "offenses" in the effective date provision of the 1990 Act, correctly in our view, to refer to the offense of illegal reentry in violation of 8 U.S.C. 1326. See United States v. Campbell, 94 F.3d 125, 127-128 (4th Cir. 1996), cert. denied, 117 S. Ct. 1847 (1997) ; United States v. Garcia-Rico, 46 F.3d 8, 9-10 (5th cir.) , cert . denied, 515 U.S. 1150 (1995). Under that interpretation of the effective date provision, the expanded statutory definition of aggravated felony applies in the cases of all aliens, including petitioner, who committed a violation of Section 1326 on or after November 29, 1990, regardless whether the prior felony conviction used as a predicate for enhanced punishment predated that statutory effective date. ___________________(footnotes) no indication that the [Sentencing] Commission intended to establish a direct correlation between the respective subsections of 1326 and L1.21b) ."). ---------------------------------------- Page Break ---------------------------------------- 13 The Ninth Circuit has reached a contrary conclusion. In United States v. Gomez-Rodriquez, 96 F.3d 1262 (9th Cir. 1996) (en bane), the court interpreted the term "offense[] " in the 1990 amendment's effective date provision to refer to an alien's prior felony offense, rather than to the alien's Section 1326 reentry offense.5 Under that view, an offense that was added to the definition of aggravated felony in 1990 would be treated as such for sentencing purposes in a Section 1326 case only if that prior offense was itself committed on or after the amendment's November ___________________(footnotes) 5 In Gomez-Rodriquez, the defendant was indicted under U.S.C. 1326(b) (2), rather than under Section 1326 generally, because the ninth Circuit, alone among the courts of appeals address the question, has held that Sections 1326(b) (1) and (b) (2) create separate offenses, independent of Section 1326(a) , so that the pertinent prior convictions must be charged and proven as elements of the offense. See United States v. Campos- Martinez 976 F.2d 589, 592 (9th Cir. 1992). This Court has granted certiorari to address the question whether the aggravated felony must be charged in the indictment and proven as an element of the offense. See Almendarez-Torres v. United States, ,No. 96- 6839 (to be argued Oct. 14, 1997). Petitioner has not, however, raised that issue in his case. Although Fifth Circuit law does not require that a defendant's prior conviction be alleged in the indictment or proven as an element of the offense, see United States v. Vasquez-O1vera, 999 F.2d 943 (5th Cir. 1993), cert. denied, 510 U.S. 1076 (1994), petitioner's prior aggravated felony conviction was alleged in the indictment and his indictment was brought under both Sections 1326(a) and (b) (2) . C.A.E.R. Item 2. The court that accepted petitioner's guilty plea listed his prior aggravated felony conviction as an element of the offense to which he pleaded guilty (Feb. 1, 1996, tr. 10- 11), and petitioner expressly admitted at the plea hearing, as part of the factual basis for his guilty plea, that he previously had been convicted of an aggravated felony (. at 15). Thus , even if the Court were to hold in Almendarez-Torres that Sections 1326(b) (1) and (b) (2) create separate offenses, petitioner's indictment and guilty plea proceedings would satisfy the requirements for a conviction under Section 1326(b) (2) . ---------------------------------------- Page Break ---------------------------------------- 14 29, 1990, effective date. Gomez-Rodriguez, 96 F.3d at 1264- 1265. 6 That disagreement over the interpretation of.the Statutory effective date does not warrant review by this Court, however, because subsequent action by Congress has limited the significance of Gomez-Rodriguez. In 1996, Congress amended the statutory definition of aggravated felony to state explicitly that the current statutory definition (which was broadened further to include any crime of violence for which the term of imprisonment is at least one year) will apply in the prosecution of all violations of 8 U.S.C. 1326 that occur on or after the date the amendment was enacted, i.e, September 30, 1996, without regard to the date of the prior conviction. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, Title III 321 and 322, 110 Stat. 3009-627 through 3009-629. Specifically, Section 321(b) of IIRIR.A adds the following sentence to U.S.C. 1101(a) (43): Notwithstanding any other provision of law(including any effective date), the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph. ___________________(footnotes) 6 Petitioner points out (Pet. 15) that certain administrative interpretations by the INS and the Board of Immigration Appeals have been consistent with the holding in Gomez-Rodriquez . Like the decision in Gomez-Rodriguez itself, those administrative rulings have no hearing on the availability of an offense-level enhancement pursuant to Sentencing Guidelines 2L1.2 (b)(2). ---------------------------------------- Page Break ---------------------------------------- 15 IIRIRA, Section 321(b), 110 Stat. 3009-628. The effective date provision for that amendment, set forth in IIRIRA Section 321(c) , further provides: Effective Date The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act [September 30, 1996], regardless of when the conviction occurred, and shall apply under Section 276(b) of the Immigration and Nationality Act [8 U.S.C. 1326(b)] only to violations of section 276(a) of such Act [8 U.S.C. 1326(a)] occurring on or after such date. IIRIRA, Section 321(c), 110 Stat. 3009-628. Congress has thereby amended Section 1101 (a) (43) to reject the Gomez-Rodriguez approach in all cases involving violations of 8 U.S.C. 1326 after September 30, 1996. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General WILLIAM C. BROWN Attorney SEPTEMBER 1997