UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-8406
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN GERARDO PEREZ-TORRES,
a/k/a Martin Geraldo Perez,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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( February 18, 1994 )
Before GARWOOD, SMITH and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Martin Gerardo Perez-Torres (Perez) was
convicted of reentering the United States after deportation, in
violation of 8 U.S.C. § 1326. Perez was sentenced to a 5-year term
of imprisonment. The district court enhanced Perez's sentence
because prior to his deportation he had been convicted of an
aggravated felony. Perez appeals the district court's sentence
because at the time of his deportation, he was informed by the
Immigration and Naturalization Service (INS) that the maximum
sentence he could receive for reentry was 2 years. Because we find
that Perez had fair warning that his conduct was a felony, and that
section 1326 clearly defined the penalties associated with its
violation, we affirm the district court's sentencing decision.
Facts and Proceedings Below
On November 15, 1989, Perez was convicted in the United States
District Court for the Western District of Texas of using an
interstate communication facility to facilitate a felony drug
transaction in violation of 21 U.S.C. § 843(b), and sentenced to a
term of imprisonment of 36 months followed by a 1-year term of
supervised release. On May 30, 1992, Perez, a Mexican national,
was deported to Mexico and was advised by INS personnel that
reentry into the United States was a felony under 8 U.S.C. § 1326,
punishable by a term of imprisonment of not more than 2 years; this
same information was provided to Perez in the printed portion of
INS Form I-294 (Form I-294), which he signed prior to being
deported.1 At the time of Perez's deportation, however, section
1326(b)(2) provided for an enhanced sentence of up to fifteen
years' imprisonment for unlawful reentry by an alien previously
convicted of an aggravated felony.2 Section 1326 had been amended
1
This portion of the form states: "By law (Title 8 of United
States Code, Section 1326) any deported person who returns
without permission is guilty of a felony. If convicted he may be
punished by imprisonment of not more than two years and/or a fine
of not more than $1,000.00." The form also contains the printed
notation: "Form I-294 (Rev. 3-29-78)N."
2
Section 1326 states in relevant part:
"(a) Subject to subsection (b) of this section, any
alien whoSQ
(1) has been arrested and deported or excluded
and deported, and thereafter
(2) enters, attempts to enter, or is at any time
2
in November of 1988 to increase the maximum punishment for reentry
from two to fifteen years, but the version of Form I-294 that was
provided to Perez at the time of his deportation had not been
revised since March of 1978, and contained a message based on the
pre-1988 section 1326, advising deportees that the maximum
authorized sentence was two years.
On January 7, 1993, police officers arrested Perez at a motel
in Austin, Texas, and charged him with possession of marihuana. At
the time of his arrest, Perez was in the United States unlawfully,
having reentered without obtaining consent from the Attorney
General for admission after deportation.
On January 19, 1993, a federal grand jury returned a one-count
indictment charging Perez with illegal reentry into the United
found in, the United States, unless (A) prior to
his reembarkation at a place outside the United
States or his application for admission from
foreign contiguous territory, the Attorney General
has expressly consented to such alien's reapplying
for admission; or (B) with respect to an alien
previously excluded and deported, unless such
alien shall establish that he was not required to
obtain such advance consent under this chapter or
any prior Act,
shall be fined under Title 18, or imprisoned not more
than 2 years, or both.
(b) Notwithstanding subsection (a) of this section,
in the case of any alien described in such subsectionSQ
(1) whose deportation was subsequent to a
conviction for commission of a felony (other than
an aggravated felony), such alien shall be fined
under Title 18, imprisoned not more than 5 years,
or both; or
(2) whose deportation was 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(a)(b).
3
States after conviction and deportation for a felony drug-
trafficking offense in violation of 8 U.S.C. § 1326. The
government filed a Notice of Intent to Seek Enhancement of Sentence
under 8 U.S.C. § 1326(b)(2) based on Perez's prior drug trafficking
conviction.3 On April 5, 1993, Perez pleaded guilty to the
indictment.
The Presentence Report (PSR) calculated a total offense level
of 21 and a Criminal History Category of IV, after adjustments for
Perez's prior deportation following a felony conviction and for
acceptance of responsibility, resulting in a guideline range of 57
to 71 months. Perez submitted objections to the PSR, arguing that
due process limited his maximum penalty to imprisonment for two
years because of the information given to him by INS at the time of
his deportation. The district court denied Perez's objection.
On June 10, 1993, the district court sentenced Perez to a term
of imprisonment of 60 months, a 3-year term of supervised release,
and a mandatory $50 assessment. The district court also revoked
Perez's term of supervised release on the drug trafficking felony
and imposed a consecutive sentence of twelve months. Perez timely
filed a notice of appeal from the district court's imposition of
the sixty month sentence.
3
In United States v. Vasquez-Olvera, 999 F.2d 943 (5th Cir.
1993), we held that subsection (b) of section 1326 is a sentence
enhancement provision, rather than the statement of a separate
offense, and hence subsection (b) may be invoked even though its
prerequisites are not alleged in the indictment, which need state
only the elements of section 1326(a).
4
Discussion
On appeal, Perez argues that the district court's imposition
of an enhanced sentence is fundamentally unfair because, although
the amended section 1326(b) provides for a maximum fifteen-year
sentence for aliens reentering the country after being previously
convicted of an aggravated felony, the INS incorrectly advised him
that, upon reentry into the United States, he would be subject to
only a two-year maximum term of imprisonment. Perez contends that
the statement contained in Form I-294 amounts to an affirmative
misrepresentation by the government of the consequences of reentry,
and thus sentencing him beyond two years violates his right to due
process under the Fifth Amendment.
We review de novo the district court's application of
constitutional standards to Perez's claim. United States v. Shaw,
920 F.2d 1225, 1228 (5th Cir.), cert. denied, 111 S.Ct. 2038
(1991). As authority for the argument that imposing a sentence in
excess of two years violates due process, Perez cites several cases
which hold that a criminal conviction must be overturned when the
government had expressly advised a defendant that the conduct he
was later convicted of was lawful. See United States v.
Pennsylvania Indus. Chem. Corp., 93 S.Ct. 1804, 1816 (1973)
(overturning conviction of corporation for violation of
environmental statute because it was not allowed to prove that it
reasonably relied on current, published regulations promulgated by
the Army Corps of Engineers which indicated that its conduct was
lawful); Cox v. Louisiana, 85 S.Ct. 476, 484 (1965) (overturning
conviction of demonstrator for violating statute prohibiting
5
picketing "near" a courthouse where "the highest police officials
of the city, in the presence of the Sheriff and Mayor" informed
demonstrators that they could gather in precise spot where they
were arrested); Raley v. Ohio, 79 S.Ct. 1257, 1266-67 (1959)
(overturning contempt convictions based on failure to answer
legislative committee's questions where chairman of committee
expressly informed defendants that they could invoke privilege
against self-incrimination; noting, inter alia, that sustaining
conviction would "sanction the most indefensible sort of entrapment
by the State").
In all of the cases relied upon by Perez, the government
misled the defendant about the legality of certain conduct. And,
when a defendant is not provided with "fair warning as to what
conduct the Government intended to make criminal, . . . traditional
notions of fairness inherent in our system of criminal justice
prevent the Government from proceeding with the prosecution."
Pennsylvania Industrial, 93 S.Ct. at 1816-17 (emphasis added).
Unlike the cases cited above, however, the INS did not inform Perez
that reentry into the United States was lawful. On the contrary,
Form I-294 expressly stated that reentry without permission was "a
felony." Thus, prior to reentering the United States Perez had
fair warning that the conduct he contemplated was a felony, and
decided to enter the United States nonetheless.
As further support for his argument, Perez cites a number of
cases holding that the punishment authorized for violation of a
criminal statute must be clearly defined. See United States v.
Batchelder, 99 S.Ct. 2198, 2203 (1979); United States v. Harris,
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932 F.2d 1529, 1536 (5th Cir.), cert. denied, 112 S.Ct. 270 (1991);
Shaw, 920 F.2d at 1228. All of the cases relied upon by Perez,
however, concern whether the punishment authorized for violation of
a criminal statute is clearly delineated within the statute itself.
Although "vague sentencing provisions may post [sic] constitutional
questions if they do not state with sufficient clarity the
consequences of violating a given criminal statute," Batchelder,
99 S.Ct. at 2204, Form I-294 is not a criminal statute. Hence, the
defect Perez complains of lies not in the underlying statute, but
rather in a provision of a document with no relevant legal force.
As Perez 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.4 Indeed, a penalty not provided for
in the statute of conviction is adequately noticed by being called
for in a separate statute. See United States v. Camacho-Dominguez,
905 F.2d 82, 84 (5th Cir. 1990).
Though Perez's argument is cast in terms of due process, its
substance is one of estoppel. Cf. Heckler v. Community Health
Services of Crawford, 104 S.Ct. 2218 at 2224 & n.12 (1984).
Estoppel against the government is problematical at best. See
Office of Personnel Management v. Richmond, 110 S.Ct. 2465 (1990).
"[I]t is well settled that the Government may not be estopped on
the same terms as any other litigant," and thus it necessarily
4
We note that Form I-294 references section 1326 as making
unauthorized reentry a felony.
7
follows that if estoppel were to be available against the
government at all it would "at least" require demonstrating all the
traditional equitable prerequisites. Community Health Services of
Crawford, 104 S.Ct. at 2224. Those prerequisites include, in cases
such as this where estoppel is sought to be based on a
misrepresentation, a change in position in reasonable reliance on
the misrepresentation. Id. at 2223. Reliance is not reasonable if
at the time of acting the party seeking to invoke estoppel could
reasonably have known the truth of the matter. Id. & n.10. Here,
the relevant time is not earlier than Perez's reentry, and
certainly then it would seem that reasonable opportunity for
knowledge of the potential penalty was afforded by the clear and
unambiguous terms of section 1326(b).5
The real crux of the matter, however, is that in our view the
law should not, and does not, regard the willful and knowing
5
Just when Perez reentered is not shown. All we know is that
it was sometime after his May 30, 1992, deportation and before
June 7, 1993, when he was arrested in Austin.
We also note that estoppel against the government on the
basis of "oral advice" by a government agent was rejected in
Community Health Services. Id., 104 S.Ct. at 2227. Further, the
Form I-294 reflected on its face that it was over ten years old
when Perez was deported. Moreover, had the statute been amended
after Perez was deported and before he reentered, the reentry
penalty provided at the time of his deportation would not have
controlled in any event. See United States v. Gonzalez, 988 F.2d
16 (5th Cir. 1993); United States v. Leonard, 868 F.2d 1393,
1399-1400 (5th Cir. 1989).
Finally, in this case there is no evidence whatever of any
reliance, reasonable or otherwise. While Perez did state that he
believed the maximum penalty was two years, he never gave any
indication that this belief had anything whatever to do with his
reentry or that had he known the maximum penalty therefor was
fifteen years he would not have reentered (nor does any other
evidence so indicate or even suggest). His lawyer could only
argue that "that might have made a difference in whetherSQmight
have given him second thoughts about coming over here."
8
commission of a felony as "reasonable" reliance for these purposes.
"Estoppel is an equitable doctrine." Community Health Services,
104 S.Ct. at 2223. However, "he who comes into equity must come
with clean hands," and thus "the doors of equity" are closed "to
one tainted with inequitableness or bad faith relative to the
matter in which he seeks relief, however improper may have been the
behavior of the" other party. Precision Instrument Mfg. Co. v.
Automotive M.M. Co., 65 S.Ct. 993, 997 (1945).6 This doctrine
assumes "even wider and more significant proportions" where the
matter in issue "concerns the public interest," for in such an
instance the denial of equitable relief "averts an injury to the
public." Id. Here the matter as to which Perez seeks relief is
his reentry into the United States, and as to this he is tainted
with extreme bad faith, for he knew such conduct was a felony and
nevertheless willfully and purposefully engaged in it; hence, to
avoid injury to the public, the doors of equity are closed to
Perez, however improper the INS's earlier advice to him concerning
the maximum sentence for that felony.
The First Circuit took a somewhat analogous view of the matter
in its recent decision in United States v. Smith, 1994 WL 13836
6
See also, e.g., 28 AM.JUR.2D Estoppel and Waiver § 28 at 631
(estoppel "is available only in defense of a legal or equitable
right or claim made in good faith and can never be asserted to
uphold crime, fraud, injustice, or wrong of any character"
(footnote omitted)); id., § 79 at 719 (". . . estoppel is for the
protection of innocent persons, and as a rule only the innocent
may invoke it. . . . [It] is available only for the protection
of claims made in good faith; [one] setting up an estoppel is
himself bound to the exercise of good faith in the transaction
and in his reliance upon the words or conduct of the other
party." (footnotes omitted)).
9
(1st Cir. January 28, 1994). There the alien, Smith, had been
convicted in 1989 of an aggravated felony and was deported in
November 1991, at which time he was furnished an INS Form I-294
advising that if he reentered without permission he would commit a
felony punishable by not more than two years' confinement.
Subsequently, Smith did reenter, and was convicted and sentenced
under section 1326(b)(2) to seventy months' confinement.
Requesting downward sentence departure, he furnished the sentencing
court an affidavit stating that he relied on Form I-294 when he
decided to return to the United States, and that had he known of
the higher penalty he would face he would not have returned. The
district court denied downward departure. On Smith's appeal, the
First Circuit assumed that the district court's denial was based on
its view that it was powerless to grant downward departure on such
a ground. Although it agreed with Smith that this circumstance was
not of a kind considered by the Sentencing Commission in
formulating the guidelines, the First Circuit nevertheless held
that the district court could not properly have departed downward
on the basis urged by Smith, because "Smith implicitly admits he
intentionally committed a felony. The sentencing court cannot
countenance Smith's purposeful decision to engage in felonious
conduct. . . ." We agree.
Conclusion
Because the INS did not misinform Perez about the lawfulness
of reentry, and because section 1326 gave fair warning about the
consequences of reentry, the district court's imposition of a 5-
year sentence did not violate Perez's due process rights.
10
Accordingly, the district court's judgment is
AFFIRMED.
11