Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-31-1995
United States v Eversley
Precedential or Non-Precedential:
Docket 94-7482
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Recommended Citation
"United States v Eversley" (1995). 1995 Decisions. Paper 146.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 94-7482
_________________
UNITED STATES OF AMERICA,
Appellee
v.
ANDRE BENSON EVERSLEY,
Appellant
_____________________________________
On Appeal From the District Court of the
Virgin Islands (St. Croix)
(D.C. Crim. No. 94-cr-00016)
_____________________________________
Argued: April 20, 1995
Before: BECKER, NYGAARD, and ROTH, Circuit Judges
(Filed: May 31, 1995)
STEPHEN A. BRUSCH, ESQUIRE
(ARGUED)
Office of Federal Public
Defender
P. O. Box 1327
Charlotte Amalie, St. Thomas
USVI, 00804-1327
Attorney for Appellant
KIM L. CHISHOLM, ESQUIRE
(ARGUED)
Office of United States
Attorney
United States Courthouse
5500 Veterans Building
Suite 260
Charlotte Amalie, St. Thomas
USVI, G 00802-6924
Attorney for Appellee
___________________________
OPINION OF THE COURT
___________________________
BECKER, Circuit Judge.
The defendant, Andre Benson Eversley, a citizen of
Guyana, having been deported from the United States following the
commission of an aggravated felony, was again found in the United
States and was indicted in the District Court of the Virgin
Islands on charges of illegally entering the country. Pursuant
to a plea bargain, Eversley was permitted to plead guilty to a
violation of 8 U.S.C.A. § 1326(b)(1) (1993) for entering the
country illegally following the commission of a non-aggravated
felony.1 The court imposed a sentence of fifty months
1
. Reentry into the country by a deported alien is governed by
§ 1326, which, at the time of Eversley’s conviction, provided:
§ 1326 Reentry of deported alien; criminal penalty for
reentry of certain deported aliens
(a) Subject to subsection (b) of this
section, any alien who --
(1) has been arrested and
deported . . . and thereafter
(2) enters . . . or is at any
time found in the United States . .
. shall be . . . imprisoned not
more than 2 years . . . .
(b) Notwithstanding subsection (a) of
this section, in the case of any alien
described in such subsection --
imprisonment. On appeal, Eversley challenges the propriety of
this sentence to the extent that the district court used
sentencing guideline § 2L1.2(b)(2), which pertains to defendants
with a prior conviction of an aggravated felony and makes that
status a specific offense characteristic carrying a sixteen level
increase on the base offense level, as opposed to sentencing
guideline § 2L1.2(b)(1), which pertains to defendants with a
prior conviction of a non-aggravated felony and provides for only
a four level increase.2 Because we conclude that the district
(..continued)
(1) whose deportation was
subsequent to a conviction for
commission of . . . a felony (other
than an aggravated felony) such
alien shall be . . . imprisoned not
more than five years . . . or
(2) whose deportation was
subsequent to a conviction for
commission of an aggravated felony,
such alien shall be . . .
imprisoned not more than 15 years .
. . .
8 U.S.C.A. § 1326 (1993).
2
. At the time of Eversley’s sentencing, section 2L1.2 of the
sentencing guidelines provided:
§ 2L1.2. Unlawfully Entering or Remaining in the
United States
(a) Base Offense Level: 8
(b) Specific Offense Characteristics
If more than one applies, use the greater:
(1) If the defendant previously was deported
after a conviction for a felony, other
than a felony involving violation of the
immigration laws, increase by 4 levels.
court’s use of guideline § 2L1.2(b)(2) was proper, we will
affirm.3
I
The defendant, a resident alien, was arrested and
convicted during 1988 in Brooklyn, New York for the sale of crack
cocaine, an aggravated felony, and was subsequently deported as a
controlled substance trafficker in January 1989. In April 1994,
he was found within the United States, on the island of St. John,
by a United States Immigration Inspector.
Following indictment and plea, the district court
sentenced Eversley for a violation of § 1326(b)(1). In so doing,
the court applied, pursuant to guideline § 2L1.2(b)(2), a sixteen
level enhancement to Eversley’s base offense level of eight,
which resulted (following the grant of a three level downward
adjustment for Eversley’s acceptance of responsibility) in a
total offense level of 21. Given Eversley’s criminal history
category of III, the applicable guideline range was forty-six to
(..continued)
(2) If the defendant previously was deported
after a conviction for an aggravated
felony, increase by 16 levels.
U.S.S.G. § 2L1.2 (1993).
3
. In reaching this result, we need not address the question,
raised by Eversley on appeal, whether § 1326(b)(1) and (2)
constitute sentence enhancement provisions or criminal offenses
distinct from § 1326(a), because Eversley’s sentence of 50 months
was properly imposed even if we conclude that § 1326(b)(1) and
(2) constitute separate criminal offenses. See infra note 5.
fifty-seven months. As we have stated, the court imposed a
sentence of fifty months.
At his sentencing hearing Eversley contended that,
given his plea bargain agreement, the district court was required
to use the four level sentence enhancement of sentencing
guideline § 2L1.2(b)(1) (for defendants with a prior conviction
of a non-aggravated felony), and a corresponding applicable
guideline range of ten to sixteen months, instead of the sixteen
level enhancement of § 2L1.2(b)(2) (for defendants with a prior
conviction of an aggravated felony), which, as noted, resulted in
a much higher range. The district court disagreed, but offered
him an opportunity to withdraw his plea if he felt that it did
not accord with his original understanding of the plea
arrangement. App. at 49 & 51. Eversley declined this offer and
argues on appeal that the district court erred, as a matter of
law, in applying guideline § 2L1.2(b)(2) to his conviction. Our
review is plenary. United States v. Collado, 975 F.2d 985, 989
(3d Cir. 1992).
II
Eversley concedes that he was in fact deported for the
commission of an aggravated felony. He nonetheless repeats on
appeal his contention that, since his indictment was treated as a
violation of § 1326(b)(1) (re-entry after deportation following
commission of a felony "other than an aggravated felony") rather
than of § 1326(b)(2) (re-entry after deportation following
commission of an "aggravated felony"), the district court should
have applied the four level enhancement of sentencing guideline
§ 2L1.2(b)(1) (for the prior commission of a non-aggravating
felony) as opposed to the sixteen level enhancement of guideline
§ 2L1.2(b)(2) (for the prior commission of an aggravated felony).
Notwithstanding the parallel structure of the guideline and
statute, we disagree. The fact that Eversley pled guilty to a
violation of § 1326(b)(1) did not eliminate, as we demonstrate,
the requirement that the sentencing court apply guideline
§ 2L1.2(b)(2) to his conviction.
Section 2L1.2(b) provides for an offense level
enhancement for violations of § 1326, depending upon the presence
of specific offense characteristics, and states: "[i]f more than
one applies, use the greater." U.S.S.G. § 2L1.2(b); see id.
Application Note 5 ("An adjustment under subsection (b)(1) or
(b)(2) for a prior felony conviction applies in addition to any
criminal history points added for such conviction in Chapter
Four, Part A (Criminal History)."). The sixteen point
enhancement of subsection (b)(2) was added by the sentencing
commission to strengthen the penalties for violations of § 1326
by eliminating the government’s need to request a discretionary
upward departure in cases where the defendant had been convicted
of a previous aggravated felony. Commentary to Amend. 375.
The structure and language of the guidelines make clear
that subsection (b)(2) of § 2L1.2 applies to all violations of
§ 1326. Section 1B1.2(a) of the guidelines requires a sentencing
court, in selecting a guideline, to determine the particular
guidelines "most applicable to the offense of conviction."
Eversley was indicted for a violation of § 1326(b)(1), and
guideline 2L1.2 applies by its terms to all violations of 8
U.S.C. § 1326. See U.S.S.G. § 2L1.2 (commentary -- statutory
provisions). Similarly, the statutory appendix to the
guidelines4 refers to § 2L1.2, in its entirety, for all
violations of § 1326. Eversley fails to point to anything in the
language or structure of the guidelines or the history
surrounding the adoption of § 2L1.2(b)(2) to suggest that the
sentencing commission intended it to apply only to violations of
§ 1326(b)(2). Accordingly, we conclude that the district court
was required to apply the sixteen level enhancement of guideline
§ 2L1.2(b)(2) in this case, even though Eversley pled guilty to a
violation of § 1326(b)(1).
Approaching the argument from a slightly different
angle, Eversley argues that the nature of the § 1326 violation
controls the court’s factual determination of the defendant’s
status as a felon or aggravated felon for purposes of applying
the specific offense characteristics of § 2L1.2(b). In
particular, he contends that since he only pled guilty to having
entered the country illegally following the commission of a non-
aggravated felony, the court could not consider in sentencing him
the fact that he had actually been deported following the
commission of an aggravated felony.
We reject this argument since the district court was
required in sentencing the defendant to consider all available
4
. The statutory appendix "specifies the guideline section or
sections ordinarily applicable to the statute of conviction."
U.S.S.G. Statutory Appendix Introduction.
information in determining whether it was necessary to apply the
sixteen level enhancement of § 2L1.2(b)(2). Guideline
§ 1B1.3(a)(4) clearly requires the sentencing court to determine
the sentence "on the basis of any other information specified in
the applicable guideline." The fact that Eversley pled guilty to
subsection (b)(1) of § 1326, as opposed to (b)(2), did not
obviate the need of the sentencing court to abide by the dictates
of guideline § 1B1.3(a)(4) by assessing the particular character
of Eversley’s prior convictions and adjusting his sentence for
his prior commission of an aggravated felony as specified by
§ 2L1.2(b)(2).
The two other courts of appeals to have addressed this
issue have also reached this conclusion. In United States v.
Frias-Trujillo, 9 F.3d 875 (10th Cir. 1993), the court declared,
in upholding the application of the sixteen level enhancement of
§ 2L1.2(b)(2) to a defendant who pled guilty to a violation of
§ 1326(b)(1), that the structure of the guidelines "clearly
indicates that the sentencing court's consideration is not
limited by the particular subsection of 1326 at issue." Id. at
877. Moreover, the Ninth Circuit, which is the only circuit to
have treated § 1326(b) as a separate criminal offense, see infra
note 5, agrees with this analysis; it has concluded that,
notwithstanding a defendant’s plea to a violation of
§ 1326(b)(1), "[t]he clear language of the Sentencing Guidelines
requires the sentencing court to increase the base offense by
sixteen levels, if defendant was deported after conviction for an
aggravated felony." United States v. Pena-Carrillo, 46 F.3d 879,
883-85 (9th Cir. 1995) (relying on United States v. Arias-
Granados, 941 F.2d 996 (9th Cir. 1991)). Eversley simply offers
no argument to suggest these cases were incorrectly decided.5
5
. The parties devote much attention to the issue of whether
§ 1326(b) constitutes a separate criminal offense or a sentence
enhancement provision for a violation of § 1326(a). This issue
implicates whether the government would need to establish a
defendant’s status under § 1326(b) as a "felon" or an "aggravated
felon" as an element of a § 1326(b)(1) or (2) offense. While the
proper characterization of § 1326(b) presents an interesting and
difficult question that has divided the courts of appeals, we
need not address this issue since Eversley’s sentence of 50
months was properly imposed even if we assume that § 1326(b)(1)
and (2) constitute distinct criminal offenses.
This issue was first addressed by a court of appeals in
United States v. Campos-Martinez, 976 F.2d 589, 591 (9th Cir.
1992), where a defendant who had previously been convicted of a
felony was indicted and pled guilty to a violation of § 1326(a)
for illegal entry following deportation. While § 1326(a) carried
with it a maximum sentence of two years, the district court
imposed a sentence of 30 months, reasoning that § 1326(b)(1) and
(2) did not constitute separate crimes with different elements
and maximum sentences, but instead were merely sentence
enhancements for a violation of § 1326(a). The Ninth Circuit
reversed and concluded that the defendant’s 30 month sentence for
a § 1326(a) violation was improper since it exceeded that
provision’s two year statutory maximum. The court reasoned that
illegal reentry following deportation for the commission of a
felony is a distinct crime, as codified at § 1326(b)(1), and not
"merely a sentence enhancement factor for the crime of reentry
following deportation, which is codified at subsection 1326(a)."
Id. at 592 ("[S]ubsections 1326(a) and 1326(b)(1) describe two
different crimes with different elements and maximum
sentences.").
After the decision in Campos, four other courts of
appeals addressed this issue, and all four disagreed with Campos
and concluded that the provisions of § 1326(b) are merely
sentence enhancements for a violation of § 1326(a). See United
States v. Cole, 32 F.3d 16, 19 (2d Cir.) (prior conviction
necessary to trigger subsection (b) need not be proven at trial),
cert. denied, 115 S. Ct. 497 (1994); United States v. Crawford,
18 F.3d 1173, 1177 (4th Cir.) (concluding that any alien who
violates § 1326(a) is "subject to" the penalty provisions of
§ 1326(b)), cert. denied, 115 S. Ct. 171 (1994); United States v.
Forbes, 16 F.3d 1294, 1300 (1st Cir. 1994) ("[P]olicy and
precedent persuade us that § 1326(b) should be construed as a
III
In sum, Eversley pled guilty and was sentenced under
the guidelines to a violation of § 1326(b)(1). He was fully
apprised that under his plea arrangement the court would
calculate his sentence pursuant to the sixteen level enhancement
of § 2L1.2(b)(2). In applying this section to his violation, the
district court correctly interpreted the dictates of the
guidelines. Accordingly, the judgment of the district court will
be affirmed.
(..continued)
sentence enhancement provision."); United States v. Vasquez-
Olvera, 999 F.2d 943, 945 (5th Cir. 1993) (same), cert. denied,
114 S. Ct. 889 (1994).
Eversley asks that we follow the result reached by the
Ninth Circuit in Campos and require the government to establish
Eversley’s status as an "aggravated felon" as an element of a
distinct § 1326(b)(2) offense. But, the sentencing court in this
case did not rely on § 1326(b)(2), rather it imposed a sentence -
- 50 months -- well within the five year statutory maximum of
§ 1326(b)(1), a provision to which Eversley pled guilty. Unlike
the district court in Campos, the sentencing court in this case
did not rely on the fifteen year maximum sentence of § 1326(b)(2)
(for reentry following an aggravated felony conviction) to impose
a sentence in excess of the five year (b)(1) statutory maximum.
Therefore, as we have stated, we must leave for another day the
resolution of the question whether § 1326(b) constitutes a
separate criminal offense or a sentence enhancement provision.