October 20, 1994 [NOT FOR PUBLICATION]
UNITED STATES COUSRT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2256
UNITED STATES,
Appellee,
v.
WILFIN ODALIS VIDAL-MEJIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge, and
Boudin, Circuit Judge.
James B. Krasnoo on brief for appellant.
Donald K. Stern, United States Attorney, and James F. Lang,
Assistant United States Attorney, on brief for appellee.
Per Curiam. Appellant, Wilfin Odalis Vidal-Mejia,
appeals from his conviction and sentence. His court-
appointed counsel has filed a brief in conformance with
Anders v. California, 386 U.S. 738 (1976). Vidal-Mejia was
informed by counsel of his right to submit a supplemental pro
se brief, but has not done so. We affirm.
Background
In April, 1993, Vidal-Mejia was charged in a one-count
indictment with illegal reentry after deportation in
violation of 8 U.S.C. 1326(a) and (b)(2). Specifically,
the indictment charged that after having been previously
arrested and deported following a conviction for commission
of an aggravated felony, Vidal-Mejia was found in the United
States on or about March 7, 1993, without having received the
permission of the Attorney General to reapply for admission.
Vidal-Mejia initially pleaded not guilty but changed his
plea to guilty at a hearing before the district court on July
6, 1993. Although there was no written plea agreement, the
government informed the court that it had agreed to recommend
a three-level reduction in the offense level for acceptance
of responsibility. A presentence report ("PSR") was
prepared, computing a total offense level of 21 and a
criminal history category of III. The base offense level of
8 was increased by 16 levels because Vidal-Mejia had been
deported follwing conviction of an aggravated felony. There
was a three-level reduction for acceptance of responsibility.
The resulting guideline imprisonment range was 46 to 57
months.
Vidal-Mejia moved for a downward departure from the
guidelines, arguing that his sentence should not exceed two
years. One of the grounds for his motion was that the
government was estopped from imposing a sentence in excess of
two years because an INS notice given to him at the time of
his deportation stated that illegal reentry was penalized by
a maximum of two years' imprisonment. In fact, at the time
of appellant's deportation, 8 U.S.C. 1326(b)(2) provided
for a maximum sentence of fifteen years for illegal reentry
by an alien deported following conviction of an aggravated
felony. The district court denied the motion and sentenced
Vidal-Mejia at the low end of the guideline range, to 46
months' imprisonment. Vidal-Mejia appeals from that sentence
and his conviction.
Discussion
Counsel for appellant identifies the following issues
that might arguably support an appeal: 1) the district court
mistakenly believed that it lacked the authority to depart
from the guidelines on the ground of the erroneous INS
notice; 2) the government is estopped from imposing a
sentence in exess of two years; 3) a sentence in excess of
two years violates the Due Process Clause of the Fifth
-3-
Amendment to the Constitution; and 4) the district court
failed to comply with Fed. R. Crim. P. 11 in accepting
appellant's guilty plea. We agree with the government that
none of these arguments has merit.
1) Failure to Depart. In denying appellant's motion for
a downward departure on the basis of the erroneous INS
notice, the district court concluded that "deterrence
necessitates a more severe sentence than that to which the
defendant asked me to depart," and that "I have no basis for
departure in the law." We conclude from this record that the
district court determined that it lacked the legal authority
to consider a departure on the basis of the INS notice. We
therefore have jurisdiction to review, de novo, the
correctness of that determination. See United States v.
Smith, 14 F.3d 662, 666 (1st Cir. 1994). We addressed the
identical question in Smith and concluded that the erroneous
INS notice "does not present the kind of circumstance a
sentencing court should consider to support a downward
departure." Id. at 666. Therefore, the district court's
denial of Vidal-Mejia's motion for a departure on that basis
was entirely proper.
2) Estoppel. Appellant argues that the doctrines of
entrapment by estoppel and equitable estoppel bar the
imposition of a sentence in excess of two years. The
"entrapment by estoppel" argument is foreclosed by our
-4-
decision in United States v. Troncoso, 23 F.3d 612, 615 (1st
Cir. 1994) (rejecting "entrapment by estoppel" argument under
almost identical circumstances because "[a]ppellant cannot
show that a government official erroneously advised him the
particular act for which he was convicted was actually legal
at the time that it was committed").
In United States v. Troncoso, supra, we also rejected an
equitable estoppel argument, but on the ground that there was
no material misrepresentation. In that case, unlike this
one, the two-year maximum contained in the INS notice was an
accurate rendition of the law as it existed at the time of
appellant's deportation. We cited our holding in Smith,
however, to suggest that even had appellant been misinformed
of the consequences of unlawful reentry and purportedly
relied thereon in deciding to return, "[t]he sentencing court
cannot countenance Smith's purposeful decision to engage in
felonious conduct, and grant him the benefit of a downward
departure, because Smith understood the penalty he would face
to be relatively minor." Smith, 14 F.3d at 666. See also
Troncoso, 23 F.3d at 616.
In United States v. Perez-Torres, 15 F.3d 403 (5th Cir.
1994), the Fifth Circuit refused to apply the doctrine of
equitable estoppel under identical circumstances. Noting
that "'he who comes into equity must come with clean hands,'"
id. at 407 (quoting Precision Instrument Mfg. Co. v.
-5-
Automotive M.M. Co., 324 U.S. 806 (1945)), the Fifth Circuit
concluded that the willful and knowing commission of a felony
(illegal reentry) cannot constitute the reasonable reliance
required by the equitable estoppel doctrine. Perez-Torres, 15
F.3d at 407. See also Akbarin v. Immigration and
Naturalization Service, 669 F.2d 839, 844 (1st Cir. 1982)
(noting that a "petitioner's unclean hands . . . may preclude
him from asserting estoppel against the Government"). We
agree with the Fifth Circuit and conclude that because
appellant cannot show "reasonable reliance," his equitable
estoppel argument is without merit.
3) Due Process. This court has not previously addressed
the argument that the imposition of a penalty in excess of
the two year maximum contained in the INS notice violates due
process. In rejecting this argument, however, we follow the
approach of all the circuits that have addressed it. See
United States v. Samaniego-Rodriguez, Nos. 93-3015 and 93-
4035, 1994 U.S. App. Lexis 20311 at *5 (7th Cir. Aug. 4,
1994); United States v. Meraz-Valeta, 26 F.3d 992, 996 (10th
Cir. 1994); United States v. Ullyses-Salazar, 28 F.3d 932,
936 (9th Cir. 1994); Perez-Torres, 15 F.3d at 406. We agree
with the following reasoning of the Fifth Circuit:
As [appellant] concedes, section 1326 clearly and
unambiguously articulated the penalties associated
with a reentry offense. Thus, regardless of the
inaccuracy of Form I-294, the statute under which
Perez was convicted provided notice adequate to
satisfy the requirements of due process.
-6-
Id. at 406 (emphasis in original).
4) Rule ll. Appellant's final argument is that his
guilty plea should be vacated because the district court
failed to comply with the mandates of Fed. R. Crim. P. 11.
Specifically, he argues that the district court violated Rule
11 by failing adequately to explain and ensure that he
understood that the maximum sentence he could receive was
fifteen years and that he was pleading guilty to two separate
charges contained in one indictment.
At the change of plea hearing, appellant was represented
by counsel and aided by an interpreter. At the district
court's request, the government explained that the maximum
term of imprisonment that appellant could receive was fifteen
years. (The government also recited the maximum fine,
supervised release and special assessment that could be
imposed.) The court then asked appellant whether he
understood that "that's the maximum penalty that can be
imposed in this case?" The appellant answered "yes."
Appellant's contention that the district court did not
fulfill its obligation under Rule 11(c) to ensure that he
understood the charges against him is belied by the record.
Rule 11 "requires the court both to inform the defendant of
the nature of the charge and make a determination that he
understands it." United States v. Allard, 926 F.2d 1237, 1244
-7-
(1st Cir. 1991). The district judge summarized the charge as
follows:
Now, before I can find you guilty of the offense,
even on your plea, I have to be satisfied beyond a
reasonable doubt that there is sufficient evidence
from which the Government could prove you guilty of
the offense of being an illegal alien illegally
reentering the United States after having been
deported. The Government has to prove that you
knowingly and willfully reentered the United States
without having received the express consent of the
Attorney General, that it didn't happen by
inadvertence or mistake, but that you really meant
to be here knowing that you were a deported alien.
At the court's request, the government then stated what its
evidence would be if the case were to proceed to trial.
The district court's description of the charge did not
specify that 1326(b) enhances the penalty for deportation
following conviction of an aggravated felony. The
government, however, specifically outlined the previous
convictions as part of the recitation of its proof at the
hearing. This cured the omission. See Allard, 926 F.2d at
1246 (explanation of charge may come from the prosecutor in
the court's presence). Moreover, in United States v. Forbes,
16 F.3d 1294, we held that 1326(a) and 1326(b) do not
describe separate criminal offenses with different elements
and maximum penalties. Instead, we concluded that 1326 (b)
should be construed as a sentence enhancement provision. Id.
at 1297-1300. Therefore, the alleged failure specifically to
inform appellant of the prior aggravated felony aspect of
1326(b) did not violate Rule 11 where the court ensured that
-8-
appellant understood that the maximum penalty was fifteen
years.
Appellant's brief indicates that counsel conducted the
requisite review and analysis of the case. See Anders, 386
U.S. at 744. Having carefully reviewed the record in
accordance with our obligation under Anders, we agree that
the appeal is indeed without merit. The conviction and
sentence are summarily affirmed pursuant to Loc. R. 27.1.
-9-