United States v. Troncoso

USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2130

UNITED STATES,

Appellee,

v.

RADHAME TRONCOSO,

Defendant, Appellant.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE


[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
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Before

Selya and Boudin, Circuit Judges,
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and Carter,* District Judge.
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Gordon R. Blakeney, Jr., by Appointment of the Court, for
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appellant.
Jean B. Weld, Assistant United States Attorney, with whom Paul M.
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Gagnon, United States Attorney, was on brief for appellee.
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May 18, 1994
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*Of the District of Maine, sitting by designation.





















CARTER, Chief District Judge.*

Radhame Troncoso appeals his conviction and

sentence for illegal reentry into the United States after

having been deported subsequent to conviction for an

aggravated felony, 8 U.S.C. 1326(b)(2). We affirm.


I. FACTUAL BACKGROUND
I. FACTUAL BACKGROUND
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Appellant, Radhame Troncoso, from the Dominican

Republic, has been convicted several times of drug

trafficking and other related offenses in the United States.

The conviction most relevant to this appeal took place on

January 25, 1988, when Appellant was convicted in a

Massachusetts state court on charges including possession of

cocaine with intent to distribute. Appellant served his

prison sentence and was then turned over to officials of the

Immigration and Naturalization Service ("I.N.S.") who

deported him on several grounds, including conviction of a

drug trafficking offense. The deportation occurred on

October 26, 1988. At that time, the I.N.S. warned Appellant

that if he returned to the U.S. within five years, he would

be guilty of a felony and subject to up to two years in

prison as provided for by section 1326, before that section





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was amended by the Anti-Drug Abuse Act of 1988. 8 U.S.C.

1326.1

Appellant did return undetected to the United

States at some point and was convicted in New York on August

29, 1991, on drug-related charges but was not deported

following his incarceration.2 He was later arrested in New

Hampshire on October 30, 1992, convicted of selling cocaine,

and received a suspended sentence in April of 1993. He was

also charged with violating section 1326(b)(2) based on his

earlier deportation in connection with the January 25, 1988,

conviction. Section 1326(b)(2), which had been amended

since Appellant's conviction and deportation, enhanced the

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*Of the District of Maine, sitting by designation.

1Prior to the enactment of the Anti-Drug Abuse Act of 1988
("ADAA"), section 1326 provided for a maximum two-year term
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of imprisonment for any alien who had been previously
arrested and deported and was thereafter convicted of
reentry, attempted
reentry, or being found in the United States without
permission. 8 U.S.C. 1326 (1987). When the ADAA was
enacted on November 18, 1988, section 1326 was amended to
provide for a maximum fifteen-year term of imprisonment for
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any alien who was convicted of reentry, attempted reentry,
or being found in the U.S. after having been previously
arrested and deported subsequent to a conviction for
commission of an aggravated felony. 8 U.S.C.
1326(b)(2)(Supp. 1993).


2The Government argues that Appellant was not deported
following the New York conviction because he used an alias
which prevented I.N.S. agents from identifying him.

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maximum penalty for unlawful reentry from two to fifteen

years for aliens who had been deported subsequent to

conviction for committing an aggravated felony. See 8
___

U.S.C. 1326(b)(2)(Supp. 1993). On August 30, 1993,

Appellant was convicted and sentenced to 60 months in

prison.


II. DISCUSSION
II. DISCUSSION
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Appellant challenges the district court's denial

of his motion to dismiss the indictment, arguing that

Congress did not intend for section 1326(b)(2), as amended

by the Anti-Drug Abuse Act of 1988, to apply retroactively

to persons who were convicted and deported prior to the

Act's effective date. 8 U.S.C. 1326(b)(2). Appellant

argues, in the alternative, that applying section 1326(b)(2)

retroactively to his case violates the ex post facto Clause
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of the United States Constitution. U.S. Const. art. I, 9,

cl. 3. He also argues that the doctrines of equitable

estoppel and estoppel by entrapment bar the court, as a

matter of law, from sentencing him beyond a two-year term of

imprisonment in light of the representations made by I.N.S.

agents at the time of his deportation. Lastly, he argues

that the district court erred by treating his New Hampshire

state conviction as a "prior sentence," rather than as part

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of the instant offense of violating section 1326(b)(2),

pursuant to section 4A1.2(a)(1) of the Sentencing

Guidelines. U.S.S.G. 4A1.2(a)(1).

A. Statutory Construction
A. Statutory Construction
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Appellant's first argument focuses on

Congressional intent with respect to the retroactive

application of section 1326(b). 8 U.S.C. 1326(b).3

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3Section 1326 provides in pertinent part that:

(a) Subject to subsection (b),
any alien who --

(1) has been
arrested and
deported or excluded
and deported, and
thereafter

(2) enters, attempts
to enter, or is at
any time found in,
t h e U n i t e d
States . . .

shall be fined under Title 18,
United States Code, or
imprisoned not more than 2
years or both.

(b) Notwithstanding subsection
(a), in the case of any alien
described in such subsection
--
. .
. .
.
( 2 ) w h o s e
deportation was

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Section 1326(b) was added to the Immigration and Nationality

Act ("INA") on November 18, 1988, when Congress enacted the

Anti-Drug Abuse Act of 1988 ("ADAA"). See Pub. L. 100-690,
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Title VII, Subtitle J, 7345(a), 102 Stat. 4471 (codified

as amended at 8 U.S.C. 1326(b)(1988)). Apart from the

statutory text, the Act provided that the amendment adding

section 1326(b) "shall apply to any alien who enters,

attempts to enter, or is found in, the United States on or

after the date of the enactment of this Act." The ADAA also

added a provision to the INA defining the new term of

"aggravated felony" to include murder, illicit trafficking

in any controlled substance, money laundering, and crimes of

violence carrying at least 5 years of imprisonment. See
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Pub. L. 100-690, Title VII, Subtitle J, 7342, 102 Stat.

4469 (codified as amended at 8 U.S.C. 1101(a)(43)(1988)).

The Act did not include a section limiting the temporal

applicability of the "aggravated felony" definition.

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subsequent to a
conviction for
commission of an
aggravated felony,
such alien shall be
fined under such
title, imprisoned
not more than 15
years, or both.

8 U.S.C. 1326 (Supp. 1993).

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The parties do not dispute that Appellant's drug

conviction, which precipitated his deportation on October

26, 1988, falls into the definition of "aggravated felony"

in section 1101(a)(43). 8 U.S.C. 1101(a)(43). The issue

in dispute is whether Congress intended for section

1326(b)(2), as it incorporates section 1101(a)(43), to apply

retroactively to an alien who was convicted and deported

prior to the ADAA amendments. In Matter of A-A-, Interim
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Dec. 3176 (BIA 1992), the Board of Immigration Appeals

interpreted the plain language of the amended provisions,

along with the applicability section accompanying section

1326(b), and concluded that the enhanced fifteen-year

criminal penalty is:

applicable to `any alien who
enters, attempts to enter or
is found in, the United States
on or after the date of
enactment of [the November 18,
1988] Act.' . . . For an
alien reentering the United
States on November 18, 1988,
to be subject to these
criminal penalties, the alien
would need to have suffered a
conviction and deportation
before November 18, 1988. It
would be virtually impossible
for an alien convicted of an
aggravated felony to reenter
or be found in the United
States on the date of
enactment unless the
definition of aggravated

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felony included convictions
occurring before that date.

This Court adopted the BIA's reasoning in Barreiro v.
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I.N.S., 989 F.2d 62 (1st Cir. 1993)(upholding the
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retroactive application of the aggravated felony definition

as it was incorporated into a "waiver of deportation"

provision, serving to bar a seven-year domiciliate from

seeking a waiver from deportation pursuant to section 212(c)

of the INA, 8 U.S.C. 1182(c)(Supp. 1992)). In a case very

similar to the facts at hand, U.S. v. Forbes, 16 F.3d 1294
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(1st Cir. 1994), this Court upheld a conviction under

section 1326(b)(2) based on aggravated felony convictions

that occurred prior to the effective date of the ADAA

amendments. In oral argument, Appellant was unable to point

to any case law in support of his position that section

1326(b)(2) was not intended to be applied retroactively.

Given the law of this circuit and the plain meaning of the

provision, we affirm the district court's application of

section 1326(b)(2) to Appellant's conviction.

B. Alleged Ex Post Facto Violation
B. Alleged Ex Post Facto Violation
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Appellant argues that even if Congress intended

for section 1326(b)(2) to be applied retroactively, the

effect of retroactive application in his situation results

in a violation of the ex post facto provision of the
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Constitution. See U.S. Const. art. I, 9, cl. 3 (barring
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the retrospective application of laws that materially

disadvantage a defendant). Appellant argues that the

Government failed to present evidence ruling out the

possibility that he returned to the United States subsequent

to his October, 1988, deportation but prior to November 18,

1988, when the ADAA amendments went into effect. He argues

that an ex post facto violation has occurred with respect to
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him and the class of convicted-and-deported aliens who were

in the country on the date of enactment because "such a

person's status is changed, and liability thus increased, by

an act, of the legislature, of which such persons had no
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notice, nor opportunity to avoid, even given such notice."

Appellant's Brief at 27.

In Forbes, this Court held that the inclusion of a
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defendant's prior drug convictions to trigger the enhanced

criminal penalties of section 1326(b)(2) did not violate the

ex post facto Clause, where the convictions had been
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obtained prior to the ADAA amendments. Forbes, 16 F.3d at
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1301-02. Citing Gryger v. Burke, 334 U.S. 728 (1948), this
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Court reasoned that the enhanced fifteen-year penalty

applies to the crime of unlawful reentry and does not

increase the punishment for crimes committed prior to the


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ADAA amendments. Id. at 1302. Appellant distinguishes his
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situation by pointing out that the appellant in Forbes
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committed the offense of unlawful reentry after the amended
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section went into effect, whereas Appellant may have

committed the offense of unlawful reentry prior to the ADAA

amendments. But section 1326(a)(2) defines the criminal

conduct more expansively to include entry, attempted

reentry, or being found in the United States without
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permission. Appellant was indicted and convicted of "being

found in the United States" in violation of section

1326(b)(2). His offense occurred on October 30, 1992, well

after the ADAA amendments and not on the date of his

undetected reentry. Hence, Appellant fails to satisfy a

critical element for establishing that a criminal law has ex
__

post facto effect; he fails to demonstrate that the law is
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"retrospective, that is, it must apply to events occurring

before its enactment." Weaver v. Graham, 450 U.S. 24, 29
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(1981); see also U.S. v. Alvarez-Quintero, 788 F. Supp. 132
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(D.R.I. 1992)(finding no ex post facto violation where court
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applied an amended Sentencing Guideline increasing the

penalty for reentry of an alien deported for an aggravated

felony, even when reentry predated the amended Guideline,

because the section 1326(b)(2) offense occurred on the date


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the alien was found in the United States and not on the date

of the unlawful reentry).

C. Sentencing: Entrapment by Estoppel and Equitable
C. Sentencing: Entrapment by Estoppel and Equitable
_____________________________________________________

Estoppel
Estoppel
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Appellant argues that the court should be estopped

from sentencing him beyond two years based on

representations made to him by the I.N.S. upon his

deportation, indicating that unlawful reentry could subject

him to a maximum two-year prison term. The Court need not

discuss this argument in detail because Appellant fails to

satisfy threshold elements of the two estoppel doctrines.

First, with respect to "entrapment by estoppel," Appellant

cannot show that a government official erroneously advised

him that the particular act for which he was convicted was

actually legal at the time it was committed. United States
_____________

v. Smith, 940 F.2d 710, 714 (1st Cir. 1991). Second, with
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respect to equitable estoppel, Appellant cannot show that he

relied upon a material misrepresentation, because the I.N.S.

informed Appellant that he would face up to two years for

unlawful reentry which was an accurate rendition of the law

as it existed on the date of Appellant's deportation. See
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Heckler v. Community Health Services, Inc., 467 U.S. 51, 59
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(1984); K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907,
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912 (1st Cir. 1989)(defining elements of equitable estoppel

to include a material misrepresentation of a party who had

reason to know of its falsity and reasonable reliance upon

the misrepresentation to the charging party's disadvantage).

Further, this Court has recently held that even where the

I.N.S. erroneously informed a deportee of the penalty faced

upon reentry, such an error is not a mitigating factor

justifying a downward departure under the Sentencing

Guidelines. U.S. v. Smith, 14 F.3d 662 (1st Cir.
________________

1994)(holding that, even where defendant was misinformed as

to the consequences of unlawful reentry and stated that he

returned in reliance on the misrepresentation, such a

circumstance did not justify a downward departure where
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defendant made a purposeful decision to engage in felonious
____________________________________________________________

conduct). Hence, Appellant's arguments regarding the two
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estoppel doctrines are unavailing.

D. Sentencing: Alleged Error in Computing Criminal History
D. Sentencing: Alleged Error in Computing Criminal History
____________________________________________________________

Appellant argues that the district court erred in

determining that his New Hampshire conviction for selling

cocaine on October 30, 1992, was a "prior sentence"

resulting in an additional two points being added to his

criminal history computation pursuant to section 4A1.2(a)(1)




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of the Sentencing Guidelines. U.S.S.G. 4A1.2(a)(1).4

Appellant argues that his conduct in violation of section

1326(b)(2) came to light only through his arrest for selling

cocaine. Since "he was found in this country in the process

of committing that [state] offense", Appellant argues that

the offense conduct of selling cocaine should be viewed as

part of the instant offense and not counted as a prior

sentence. See Trial Transcript (Aug. 30, 1993) at 29-30.
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The commentary to section 4A1.2 defines "prior

sentence" as "a sentence imposed prior to sentencing on the

instant offense, other than a sentence for conduct that is

part of the instant offense." U.S.S.G. 4A1.2, comment.

(n.1). Here, Appellant's state court sentence was imposed

in April of 1993, prior to his August 30, 1993, sentencing

on the instant offense. Whether his conduct in selling


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4Appellant's counsel, in oral argument, acknowledged that
his brief to this Court wrongly used the term "related
cases," referred to in section 4A1.2(a)(2) of the Sentencing
Guidelines, to refer to the relationship between Appellant's
prior New Hampshire sentence and the instant offense of
violating section 1326(b)(2). 8 U.S.C. 1326(b)(2).
Counsel acknowledged that "related cases," as used in the
Guidelines, refers to the relationship between prior
sentences and whether prior sentences should be counted as
one sentence in a defendant's criminal history and does not
govern a court's assessment of whether a prior sentence
should be viewed as part of the instant offense. See also
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U.S. v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992); U.S. v.
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Walling, 936 F.2d 469, 471 (10th Cir. 1991).
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cocaine qualifies as conduct that was part of the instant

offense presents an issue of first impression in this

circuit. Other circuit courts of appeal that have

considered the issue have decided the appropriate inquiry is

whether the "prior sentence" and the instant offense involve

conduct that is severable into two distinct offenses. See,
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e.g., U.S. v. Beddow, 957 F.2d 1330, 1338-39 (6th
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Cir. 1992)(holding that defendant's state conviction for

carrying a concealed weapon was not part of the instant

federal money laundering offense, even though the concealed

weapon was found at the time of defendant's arrest for

attempting to carry out money laundering scheme); U.S. v.
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Banashefski, 928 F.2d 349 (10th Cir. 1991)(holding that
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defendant's state court conviction for possessing a stolen

car was severable from federal offense of being a felon in

possession of a firearm, even though firearm was found in

car's trunk at time of defendant's arrest for state stolen

vehicle charge).

Whether or not the "prior sentence" and the

instant offense are severable entails a fact-specific

inquiry by the district court. To the extent that factual

issues are involved, the district court's determinations are

reviewed under the clearly erroneous standard, and "due


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deference" is afforded to the "application of the guidelines

to the facts." 18 U.S.C. 3742(e). Here, the district

court based its findings on the Government's arguments that

the only relation between Appellant's drug selling conduct

and his conduct in violating section 1326(b)(2) is that the

former violation set in motion a chain of events whereby

federal agents were able to trace Appellant's fingerprints

to those of Radhame Troncoso and the I.N.S. then retrieved

his file, which led to the determination that Appellant was

in the country in violation of 1326(b)(2). Trial Transcript

at 30-31. The Government argued there was no other

connection between the conduct involved in the drug offense

and the 1326(b)(2) violation especially where the state

prosecutor and the United States Attorney had to prove

totally different elements with respect to each offense.

Id. Based on these arguments, the district court's
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determination that Appellant's sentence for selling cocaine

constituted a severable offense, and a "prior sentence" for

the purpose of computing Appellant's criminal history

category, is not erroneous.

The judgment of the district court is AFFIRMED.
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