REVISED FEBRUARY 14, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-10848
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARIA LUISA PRINCIPE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
February 11, 2000
Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-appellant Maria Luisa Principe appeals from the
sentence imposed by the district court following her pleading
guilty, pursuant to a plea agreement, to two counts of knowingly
possessing counterfeit alien registration receipt cards in
violation of 18 U.S.C. § 1546(a).
I. BACKGROUND
Following execution of a search warrant and during a search of
Principe's residence on January 29, 1999, INS agents recovered
among other things, three fraudulent alien registration receipt
cards and two fraudulent social security cards from Principe's
purse. The first card featured Principe's photograph and was in
the name of Laura Castanon. A second card also featured Principe's
photograph, but was in the name of Victoria Rodriguez. And a third
card was in the name of Reginaldo Gallardo. The two social
security cards recovered from Principe's purse were in the names of
Laura Castanon and Victoria Rodriguez. Also recovered during the
search of Principe's residence were 18 fraudulent but blank INS
notice of action forms (form no. 1-797C) used for obtaining
replacement alien registration receipt cards; 3 fraudulent Mexican
birth certificates in the name of Rick Meza; 4 fraudulent but blank
Mexican birth certificates; 17 fraudulent but blank Mexican entry
forms (form no. F.M.6); 15 fraudulent but blank Mexican military
service booklets; and 19 fraudulent Certificates of Naturalization.
All told, 90 fraudulent documents were found at Principe's home.
Before executing the search warrant, the agents determined that
Principe was a lawful resident alien.
On April 20, 1999, a six-count superseding indictment was
returned against Principe. That indictment charged Principe with
one count of encouraging an alien to illegally enter the United
States in violation of 8 U.S.C. § 1324(a)(1)(iv); two counts of
possessing a fraudulent alien registration receipt card in
violation of 18 U.S.C. § 1546(a); one count of possession of forged
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Immigration and Naturalization documents in violation of 18 U.S.C.
§ 1546(a); one count of possession of five or more false
identification documents in violation of 18 U.S.C. § 1028(a)(3);
and one count of possession of counterfeit naturalization documents
in violation of 18 U.S.C. § 1426(c). Pursuant to a plea agreement,
Principe entered a guilty plea to the two counts charging her with
possession of fraudulent alien registration receipt cards (counts
two and three) and all remaining counts were dismissed at the time
of her sentencing on July 16, 1999.
At sentencing, the district court permitted the government to
call as a witness, Special Agent Edward Koranda of the Immigration
and Naturalization Service (“INS”), and over the objections of
Principe's counsel, Agent Koranda testified regarding his opinion
of the potential uses Principe had for the two fraudulent alien
registration receipt cards featuring her photograph. He testified
that she could have: (1) given the cards to someone who looked like
her; (2) used the cards as examples of the quality of fraudulent
card she could obtain for others; or (3) used the cards herself to
conceal her identity in the event she were apprehended smuggling
aliens into the United States (i.e., if caught, she would produce
the fake registration cards and be deported as Laura Castanon or
Victoria Rodriguez, and then later return to the United States
under her own name using her valid registration card). On cross-
examination, Koranda conceded that he considered more than just the
two fraudulent alien registration cards mentioned in the indictment
3
and the factual resume to formulate his opinions.1 He also
testified that up until the week before sentencing he had
consistently told the United States Attorney's office that he
believed Principe had the cards for only the third use he testified
to, that is, that Principe had the cards to use as false
identification in the event she was apprehended smuggling illegal
aliens into the United States.
At sentencing, Principe maintained that she had the two alien
registration receipt cards only for the purpose of securing
employment in the United States during the time she was waiting for
her own legitimate registration receipt card to be processed. The
district court however, considering the INS agent's testimony and
all of the references in the pre-sentence report (“PSR”) to the
other fraudulent documents retrieved from Principe's residence,
adopted the recommendation of the United States Probation Office
that Principe be sentenced under U.S.S.G. § 2L2.1, which guideline
deals with, among other things, trafficking in documents related to
naturalization, citizenship, or legal resident status.2 The
1
The dissent asserts that neither the addendum to the PSR nor
Agent Koranda’s testimony "draw from Principe’s activities that
fall into the category of relevant conduct." Agent Koranda’s
concession on cross-examination belies this assertion.
2
The factor which prompted the probation officer to select
U.S.S.G. § 2L2.1 as the appropriate guideline for Principe’s
sentence was the presence in the heading of that guideline of the
word "trafficking." That word is not used anywhere in the statute
of conviction and it is not defined anywhere in the Guidelines.
The most applicable dictionary meaning of "trafficking" is "to
carry on trade or commercial dealings" and "to trade or deal in a
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district court overruled Principe's objection to the use of § 2L2.1
(with a base offense level of 11) and rejected her argument that
§ 2L2.2 (with a base offenses level of 8), dealing with the
fraudulent acquisition of documents related to naturalization,
citizenship, or legal resident status for one's personal use was
the more appropriate guideline to use in determining the sentence
to be imposed. Principe has timely appealed her sentence, arguing
that the district court improperly utilized § 2L2.1, rather than
§ 2L2.2.
II. DISCUSSION
The sole issue before us is whether the district court erred
in sentencing Maria Luisa Principe under U.S.S.G. § 2L2.1 rather
than under U.S.S.G. § 2L2.2. We review a district court's
selection of the applicable sentencing guideline de novo. See
United States v. Hornsby, 88 F.3d 336, 338 (5th Cir. 1996). After
specific commodity or service, often of an illegal nature."
WEBSTER’S COLLEGIATE DICTIONARY 1414 (1991). The only portion of 18
U.S.C. § 1546(a) which even remotely contemplates "trafficking" is
that portion of the third paragraph thereof which reads: "whoever
... sells or otherwise disposes of, or offers to sell or otherwise
dispose of, or utters, such visa, permit or other document to any
person not authorized by law to receive such document." This
language could support a determination that § 2L2.1 is the most
appropriate of the two guidelines specified in the Appendix A -
Statutory Index as being applicable to § 1546. There is nothing,
however, in the counts of the indictment to which Principe pleaded
guilty nor in the plea agreement nor in the factual resume which
even intimates, much less expressly states, that Principe’s conduct
related to "selling," "trading" or "dealing" in "such documents" to
or with any person not authorized by law to receive such documents.
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carefully reviewing the record in this case, and for the reasons
discussed below, we find that the district court committed
reversible error in sentencing Principe under § 2L2.1 rather than
§ 2L2.2.
When sentencing a defendant, the district court must first
determine which offense guideline section is most applicable to the
offense of conviction, generally by reference to the guidelines'
statutory index found at Appendix A thereto. See U.S.S.G.
§ 1B1.2(a), comment 1. If more than one offense guideline section
is referenced for a particular statute, the district court must
select the most appropriate section based upon the nature of
conduct charged in the count for which the defendant was convicted.
See id.; see also United States v. Beard, 913 F.2d 193 (5th Cir.
1990).
In this case, the district court was faced with the dilemma of
choosing between two competing offense guidelines sections, both of
which were made applicable by the guidelines' statutory index to 18
U.S.C. § 1546(a). The first, § 2L2.1, deals with “trafficking” in
documents relating to naturalization, citizenship, or legal
resident status and carries a base offense level of 11. The
second, § 2L2.2, deals with fraudulent acquisition of documents
relating to naturalization, citizenship, or legal resident status
for one's “own use” and carries a base offense level of 8. Thus,
in order to determine which offense guideline section to apply when
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sentencing Principe, the district court was required to select the
most appropriate of the two applicable sections based upon the
nature of conduct charged in the counts for which she pleaded
guilty and was convicted.
As a preliminary matter, we note that the first three
paragraphs of 18 U.S.C. § 1546(a), to which Principe twice pleaded
guilty, provide as follows:
(a) Whoever knowingly forges, counterfeits,
alters, or falsely makes any immigrant or
nonimmigrant visa, permit, border crossing
card, alien registration receipt card, or
other document prescribed by statute or
regulation for entry into or as evidence of
authorized stay or employment in the United
States, or utters, uses, attempts to use,
possesses, obtains, accepts, or receives any
such visa, permit, border crossing card, alien
registration receipt card, or other document
prescribed by statute or regulation for entry
into or as evidence of authorized stay or
employment in the United States, knowing it to
be forged, counterfeited, altered, or falsely
made, or to have been procured by means of any
false claim or statement, or to have been
otherwise procured by fraud or unlawfully
obtained; or
Whoever, except under direction of the
Attorney General or the Commissioner of the
Immigration and Naturalization Service, or
other proper officer, knowingly possesses any
blank permit, or engraves, sells, brings into
the United States, or has in his control or
possession any plate in the likeness of a
plate designed for the printing of permits, or
makes any print, photograph, or impression in
the likeness of any immigrant or nonimmigrant
visa, permit or other document required for
entry into the United States, or has in his
possession a distinctive paper which has been
adopted by the Attorney General or the
Commissioner of the Immigration and
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Naturalization Service for the printing of
such visas, permits, or documents; or
Whoever, when applying for an immigrant
or nonimmigrant visa, permit, or other
document required for entry into the United
States, or for admission to the United States
personates another, or falsely appears in the
name of a deceased individual, or evades or
attempts to evade the immigration laws by
appearing under an assumed or fictitious name
without disclosing his true identity, or sells
or otherwise disposes of, or offers to sell or
otherwise dispose of, or utters, such visa,
permit, or other document, to any person not
authorized by law to receive such document; or
....
18 U.S.C. § 1546(a).
Clearly this statute is designed to punish several types of
conduct. Those acts described in the first paragraph revolve
around a defendant's individual procurement, possession, or use of
various fraudulent immigration documents. The second paragraph
concerns a defendant's procurement, possession, or use of materials
which would enable the defendant to manufacture or provide various
fraudulent immigration documents to others. The third paragraph
defines a real mixture of prohibited conduct including that which
would enable the defendant to assist others. That the guidelines'
statutory index references the potential applicability of both
§ 2L2.1 and § 2L2.2 for violations of 18 U.S.C. § 1546(a) is
therefore, no surprise. Presumably, the “personal use” guideline
section, § 2L2.2, could be applicable to violations charged under
the first paragraph, and the “trafficking” section, § 2L2.1, could
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be applicable to violations charged under the second and third
paragraphs. We note that the two counts of the indictment to which
Principe pleaded guilty reference simple “possession” under the
first paragraph of 18 U.S.C. § 1546(a).
Principe argues that the district court should have restricted
its analysis of which guideline section applied to the language
contained in her counts of conviction, and it should not have taken
into consideration the other relevant conduct related to counts
which the government dismissed. The government contends that in
order to determine whether Principe's possession was for the
purpose of “trafficking” -- making § 2L2.1 applicable, or for her
“own use” -- making § 2L2.2 applicable, the district court had to
look to evidence at the sentencing hearing other than the direct
language of the counts of conviction. The government specifically
asserts that “the evidence at the sentencing hearing was properly
focused on the decisive issue of whether Principe possessed the
cards in question for her own use.” Without citation to authority,
the government further contends that the initial factual issue
raised by the heading of § 2L2.2, that is, whether the cards were
for Principe's “own use,” is reviewable only for clear error, and
that the district court's resolution of this factual issue
necessarily required it to look beyond the conduct charged in the
counts for which the Principe was convicted. The government does
cite Beard for the proposition that, in choosing between two
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possible guidelines, the district court may look to the general
conduct of the defendant “irrespective of the statute of
conviction.” Beard, 913 F.2d at 198.
The government's reliance on Beard, however, is misplaced. In
that case, we did hold that the district court could look to the
general conduct of Beard irrespective of the statute of conviction,
in order to sentence him under § 2F1.1, a fraud guideline, as
opposed to § 2J1.3, a perjury guideline, but we did so only on the
basis of two findings: first, because the offense to which Beard
pleaded guilty specifically contained as an element “fraudulently
making a false statement,” see Beard, 913 F.2d at 198; and
secondly, because in Beard, as part of his plea, the defendant
stipulated and admitted to the very conduct giving rise to the
applicability of the more severe fraud guideline, and under
§ 1B1.2(a), sentencing under the more severe guideline was
therefore appropriate.
We agree with Principe that the district court can look only
to the offense of conviction in order to determine which guideline
section was applicable. In this situation, where the defendant has
pleaded guilty pursuant to a plea agreement, the district court
must look first at the language of the indictment, then to the
language of the plea agreement and then to the stipulation of facts
contained in the factual resume supporting the plea agreement. See
U.S.S.G. § 1B1.2(a) (stating that when a plea agreement contains a
10
stipulation that specifically establishes a more serious offense
than the offense of conviction, the defendant may then be sentenced
to the higher offense); see also Beard, 913 F.2d at 198 (once a
defendant stipulates and acknowledges facts which establish a more
serious offense, the district court may consider those facts when
fashioning a sentence).
Here, the indictment, the plea agreement, and the factual
resume support only the conclusion that Principe knowingly
possessed two fraudulent alien registration receipt cards which
featured her photograph and two different names. The factual
resume filed in support of Principe's guilty pleas contained only
the following facts:
On November 20, 1998, MARIA LUISA PRINCIPE,
did knowingly possess two counterfeit
Immigration Naturalization alien registration
receipt cards. The cards were in the names of
Laura Castanon and Victoria Rodriguez and
depicted Maria Luisa Principe's photograph.
Maria Luisa Principe knew the cards were
counterfeit.
The elements of the offenses to which Principe entered two
guilty pleas; that is, two separate violations of 18 U.S.C.
§ 1546(a), were recited in the factual resume as follows:
1. That the defendant knowingly possessed an
Immigration Naturalization Service alien
registration receipt card;
2. That the document was counterfeited; and
3. That the defendant knew at the time of the
possession that the document had been forged
[sic] counterfeited.
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Principe neither admitted nor stipulated to any facts or
elements of her offense of conviction other than those contained in
the factual resume. Thus, all that could be gleaned from the
indictment, the plea agreement, and the factual resume, is that
Principe pleaded guilty to “possessing” two fraudulent alien
registration receipt cards featuring her photograph and two
different names. And thus, under § 1B1.2(a) and our own precedent
in Beard, without some reference in either the plea agreement or
the factual resume which would constitute either a stipulation or
an admission to other conduct which might be characterized as
“trafficking,” the appropriate offense guideline section could not
be § 2L2.1. As a result, and combined with the fact that
Principe's possession in her own purse of the two cards bearing her
own likeness, only with differing names, by the government's and
the district court's own concession, could reasonably have been for
her own use were she to be arrested for smuggling aliens, we
conclude that the appropriate sentencing guideline section to have
been applied in this case was the “personal use” section, § 2L2.2.3
3
Few circuit courts have addressed the propriety of using
§ 2L2.1 over § 2L2.2 when a defendant is convicted of the
possession of a relatively minor number of false or fraudulent
immigration documents. Those which have, tend to focus on the
availability of a personal use by the defendant for the fraudulent
documents in determining whether the “personal use” section, §
2L2.2, is more appropriate. See, e.g., United States v. Domanski,
48 F.3d 1222, 1995 WL 87178, at *3 (7th Cir. March 2, 1995)
(unpublished) (“Domanksi was convicted for possession of two
counterfeit passports. Having been a citizen of the United States
since 1989, he had no need to obtain any . . . for his own use.
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III. CONCLUSION
Having conducted an exhaustive review of the record of this
case, and for all of the foregoing reasons, we conclude that the
district court committed reversible error in sentencing Maria Luisa
Principe under U.S.S.G. § 2L2.1, and we therefore VACATE the
sentence imposed and REMAND for resentencing under U.S.S.G.
§ 2L2.2.
Even if he did, Domanski could not have used the passports found in
his possession –- they were not in his name and the photographs
were not of Domanski.”). Here, the two fraudulent alien
registration receipt cards found in Principe's purse did in fact
feature her photograph, only the names were different. In our
view, it is plausible that the alien registration receipt cards at
issue in this case were available for Principe's personal use.
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