United States Court of Appeals
For the First Circuit
No. 03-2723
UNITED STATES,
Appellee,
v.
JOSÉ M. FIGUEREO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Lynch, Lipez, and Howard, Circuit Judges.
Luis A. Guzmán-Dupont for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, with whom H.S.
Garcia, U.S. Attorney, and German Rieckehoff, Assistant U.S.
Attorney, were on brief, for appellee.
April 19, 2005
LIPEZ, Circuit Judge. José Figuereo pled guilty to being
found in the United States after having been deported, a violation
of 8 U.S.C. § 1326 (2003). In calculating Figuereo's sentence of
57 months' imprisonment and three years of supervised release, the
district court added two criminal history points pursuant to United
States Sentencing Guideline ("U.S.S.G.") § 4A1.1(d) (2003) because
Figuereo committed the instant offense -- being found in the United
States -- while serving a state prison sentence. Figuereo appeals
his sentence, arguing that the district court erred in applying
§ 4A1.1(d) and in treating the Guidelines as mandatory. He also
challenges the drug testing and treatment condition of his
supervised release, arguing that the court improperly delegated its
authority to a probation officer. We remand for the limited
purpose of adjusting the drug treatment and testing condition but
affirm the rest of the sentence.
I.
The facts in this case are undisputed. Figuereo, a
Dominican national, was deported from the United States in 1992
following his conviction for various drug-related misdemeanors and
felonies. He re-entered the country without permission in 1999.
In May 2002, Figuereo was arrested in Puerto Rico on drug
charges. He was subsequently convicted in Puerto Rico Superior
Court and sentenced to one year in prison. While Figuereo was
serving his sentence, he participated in a routine interview with
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the Alien Criminal Apprehension Program for the Department of
Homeland Security. In that interview, Figuereo claimed to be David
Figueroa-Figuereo, a legal permanent resident of the United States.
Further investigation revealed Figuereo's true identity and the
fact of his previous conviction and deportation.
On April 30, 2003, a federal grand jury indicted Figuereo
on one count of entering the United States as an alien previously
deported following a conviction for an aggravated felony, 8 U.S.C.
§ 1326(b)(2).1 Figuereo pled guilty to this count on July 14,
2003. On November 10, 2003, the district court sentenced Figuereo
1
8 U.S.C. § 1326 provides that:
(a) In general
Subject to subsection (b) of this section, any alien
who--
. . .
(2) enters, attempts to enter, or is at any time found
in, the United States . . .
shall be fined under Title 18 [of the United States
Code], or imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed
aliens
Notwithstanding subsection (a) of this section, in the
case of any alien described in such subsection--
. . .
(2) whose removal 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 . . . .
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under the then mandatory Guidelines to 57 months in prison, the
bottom of the applicable sentencing range, and three years of
supervised release. That sentence reflects a two-point increase in
Figuereo's criminal history under U.S.S.G. § 4A1.1(d), which
mandates such an increase "if the defendant committed the instant
offense while under any criminal justice sentence." The court also
imposed numerous conditions of supervised release, one of which
provided that:
The defendant shall . . . submit to a drug test within
fifteen (15) days of release . . . and at least two (2)
tests thereafter when so requested by the U.S. Probation
Officer. If any such samples detect substance abuse, the
defendant shall, at the discretion of the U.S. Probation
Officer, participate in a substance abuse treatment
program, arranged and approved by the U.S. Probation
Officer.
Figuereo filed a timely appeal, challenging his sentence
and the condition of supervised release relating to drug testing
and treatment.
II.
A. U.S.S.G. § 4A1.1(d) enhancement
Section 4A1.1(d) of the Sentencing Guidelines instructs
a court calculating a defendant's criminal history level to "[a]dd
2 points if the defendant committed the instant offense while under
any criminal justice sentence, including . . . imprisonment."
Here, Figuereo's offense was being "found in[] the United States"
in violation of 8 U.S.C. § 1326. Because he was serving a state
prison sentence when the Department of Homeland Security "found"
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him, the district court concluded that § 4A1.1(d) applied and added
two criminal history points. Figuereo now asserts for the first
time on appeal that § 4A1.1(d) cannot apply without a mens rea
component.2
We typically review the district court's factual findings
for clear error and its interpretation and application of the
sentencing guidelines de novo. United States v. Savarese, 385 F.3d
15, 18 (1st Cir. 2004). Where the defendant raises objections on
appeal that were not presented to the district court, however, the
standard is different.3 Under these circumstances, "our review is
2
Figuereo also contends that the § 4A1.1(d) enhancement was
improper in light of U.S.S.G. § 1B1.3(a) (2003), which limits
relevant conduct (i.e., factors that determine the offense level)
to acts that are willful and related to the instant offense. He
asserts that because the conduct that led to the § 4A1.1(d)
enhancement -- being in prison when he was "found" in the United
States -- was unrelated to the instant offense and not willful, it
should not have affected the Guidelines calculation.
This reasoning rests on an erroneous reading of § 1B1.3(a).
By its own terms, § 1B1.3(a) defines relevant conduct only for
purposes of Chapters 2 and 3 of the Guidelines. The criminal
history enhancement at issue here falls under Chapter 4 of the
Guidelines, and is thus governed instead by § 1B1.3(b) (2003).
Section 1B1.3(b) specifically provides that factors affecting the
guideline range under Chapter 4 are determined not by § 1B1.3(a),
but rather "on the basis of the conduct and information specified
in the respective guidelines." Here, the relevant guideline, §
4A1.1(d), provides for a two-point increase if the defendant
"committed the instant offense while under any criminal justice
sentence," without reference to any mens rea requirement or whether
the sentence was related to the instant offense.
3
Figuereo did object at sentencing, but he did so solely on a
basis not now before us -- namely, that the Guidelines calculation
gave too much weight to his Puerto Rico conviction because it added
points both under § 4A1.1(b), as a "prior sentence of imprisonment
exceeding one year and one month," and under § 4A1.1(d). He
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restricted to plain error." United States v. Carrasco-Mateo, 389
F.3d 239, 243 (1st Cir. 2004). Plain error is a deferential
standard under which errors will be corrected only if the defendant
shows "(1) that an error occurred (2) which was clear or obvious
and which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001).
Emphasizing Supreme Court precedent disfavoring offenses
that lack a mens rea requirement, see Staples v. United States, 511
U.S. 600, 606 (1994), Figuereo asserts that the court erred in
applying the § 4A1.1(d) enhancement without regard to the
voluntariness of his conduct. In other words, he contends that
because he did not have the option of leaving the United States
once he was imprisoned, his sentence for being "found" while in
prison cannot be more severe than if he had been "found" before
being imprisoned. We disagree.
Section 4A1.1(d) defines a sentencing enhancement, not an
element of the offense. See Harris v. United States, 536 U.S. 545,
549 (2002) (distinguishing between elements of a crime and
sentencing factors on the ground that the latter are "not subject
to the Constitution's indictment, jury, and proof requirements").
acknowledged that the court had calculated the sentence correctly
but raised this "double-dipping" argument as a structural flaw in
the Guidelines themselves.
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Several of our sister circuits have concluded that Guidelines
sentencing factors need not include a mens rea requirement. See,
e.g., United States v. Gonzalez, 262 F.3d 867, 870 (9th Cir. 2001);
but see United States v. Schnell, 982 F.2d 216, 220-21 (7th Cir.
1992) (rejecting a categorical rule that sentencing enhancements do
not require a mens rea element, but concluding that the particular
enhancement at issue did not violate due process despite absence of
such an element). Moreover, at least two of our sister circuits
have upheld § 4A1.1(d) enhancements for defendants who were "found"
in the United States in violation of 8 U.S.C. § 1326 while they
were imprisoned. See United States v. Coeur, 196 F.3d 1344, 1346
(11th Cir. 1999); United States v. Santana-Castellano, 74 F.3d 593,
598 (5th Cir. 1996).
The fact of being under a criminal justice sentence is a
sentencing factor for violations of 8 U.S.C. § 1326, not an element
of the crime of being "found" in the United States.4 It was thus
not plain error for the district court to follow our sister
circuits in applying the § 4A1.1(d) enhancement to a defendant who
was "found" in the United States while imprisoned.5
4
Figuereo's constitutional challenge on mens rea grounds is
limited to the § 4A1.1(d) sentencing enhancement. He does not
dispute the constitutionality of the statute under which he was
convicted, and we do not reach that issue.
5
Although it was not plain error for the court to apply the
§ 4A1.1(d) enhancement without regard to Figuereo's mens rea, we
note that Figuereo did in fact have a culpable state of mind
relating to his illegal entry when he was "found" in prison. He
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B. Booker
Figuereo also argues for the first time on appeal that he
is entitled to resentencing in light of the Supreme Court's recent
decision in United States v. Booker, 125 S. Ct. 738, 764-75 (2005)
(Breyer, J.), which rendered the Guidelines advisory rather than
mandatory. To prevail on an unpreserved Booker claim, a defendant
must show not only that he was sentenced under the mandatory
Guidelines, but also that there are "circumstances creating a
reasonable probability that the district court would impose a
different sentence more favorable to the defendant under the new
'advisory Guidelines' Booker regime." United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005); see also United
States v. Heldeman, F.3d , No. 04-1915, 2005 WL 708397, at
*3 (1st Cir. Mar. 29, 2005) (describing the Booker plain error
inquiry as whether "there is reasonable indication that the
district judge might well have reached a different result under
advisory guidelines").
At sentencing, Figuereo asked the district court to "be
considerate" to him, explaining that, "I came here on account of my
children, because as you know, I have my children [in the United
States], and I was just coming here to try to see them, and all the
attempted to conceal his identity and immigration status from
federal officials, identifying himself to Department of Homeland
Security officials as David Figueroa-Figuereo, a legal permanent
resident of the United States.
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crimes that I have committed have been the result of my drug
abuse." Emphasizing that mandatory Guidelines precluded the
sentencing court from taking such mitigating factors into account,
see Antonakopolous, 399 F.3d at 81, Figuereo asserts that he should
be resentenced under the advisory regime to allow the court to
reconsider his request.
There is no indication, however, that the court would
have imposed a more lenient sentence in light of Figuereo's request
even if it had been free to do so, particularly given what it
described as Figuereo's "extensive" criminal history.6 The court
did not comment on Figuereo's family ties or history of drug abuse
despite Figuereo's invocation of these factors at sentencing and
references to them in the pre-sentence report ("PSR"). Cf.
Heldeman, 2005 WL 708397, at *3. Moreover, the PSR indicated that
although Figuereo has four children in the United States, he does
not have a relationship with any of them beyond providing child
support for one daughter. Thus, the court might well have viewed
6
The district court described Figuereo's "extensive criminal
record" at the sentencing hearing, noting that it included
possession of stolen property in the Bronx, New York. Criminal
theft, also in New York. Possession with intent to distribute
narcotics in New Jersey. Another case of possession of a weapon in
the third degree in New York, and possession of a stolen motor
vehicle in Providence, Rhode Island. Then, also, simple assault
and battery in Rhode Island, and finally, violation of drugs in
Puerto Rico, possession with intent to distribute.
The court then warned Figuereo that "[i]f you commit another
offense after this sentence . . . then you will be considered a
criminal career offender, which might entail a life sentence."
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his claim to have returned to the United States "on account of my
children" with some skepticism.
"Even post-Booker, the district court 'must consult [the]
Guidelines and take them into account when sentencing.'" United
States v. Serrano-Beauvaix, 400 F.3d 50, 55 (1st Cir. 2005)
(quoting Booker, 125 S. Ct. at 767). The Guidelines in this case
dictated a sentencing range of 57 to 71 months in prison. Pursuant
to the plea agreement, the district court sentenced Figuereo to the
bottom of that range. Figuereo has failed to demonstrate a
reasonable probability that, having consulted the Guidelines, the
district court would impose a lower sentence on remand. His Booker
claim therefore fails.
C. Drug testing and treatment release condition
Figuereo also contends for the first time on appeal that
the district court impermissibly delegated authority to the
probation officer to decide how many drug tests to administer and
whether to order him to attend a drug treatment program if he
failed a drug test while on supervised release. This delegation
constitutes plain error under United States v. Meléndez-Santana,
353 F.3d 93 (1st Cir. 2003), in which we held that a sentencing
court "may not . . . vest the probation officer with the discretion
to order an unlimited number of drug tests" and must determine
whether the defendant has to undergo drug treatment "either at the
time of sentencing, or later in response to a motion by the
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probation officer." Id. at 101-03 (footnote omitted). The
government concedes plain error and agrees that this court should
remand for limited resentencing on this basis. We therefore remand
for an adjustment of the drug testing and treatment portion of the
sentence.7 See United States v. Vega, 398 F.3d 149, 154 (1st Cir.
2005) (vacating the defendant's sentence "only to the extent it
delegates the terms of his drug testing and treatment during the
period of his supervised release, and remand[ing] for resentencing
on this sole issue"). The remainder of Figuereo's sentence is
affirmed.
So ordered.
7
The explicit delegation of authority to the probation officer
in this case distinguishes it from United States v. Lewandowski,
372 F.3d 470 (1st Cir. 2004) (per curiam), in which we construed a
drug testing condition of supervised release to avoid a defect
instead of vacating the condition and remanding for resentencing.
The drug testing condition at issue in Lewandowski required the
defendant to "submit to one drug test within 15 days of release
from imprisonment and at least two periodic tests thereafter," but
did not specify who had the authority to determine the maximum
number of tests. Id. at 470-71. Noting that the determination was
not explicitly delegated to a probation officer, we "construe[d]
the supervised release condition to avoid any delegation problem
. . . [and] to cap the number of drug tests at three." Id. at 471
(emphasis in original).
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