UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-3556
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERNANDO SAENZ-FORERO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(July 20, 1994)
Before JOHNSON, BARKSDALE and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-appellant Hernando Saenz-Forero pleaded guilty on
February 3, 1993 to illegally attempting to re-enter the United
States after having been previously arrested and deported. 8 U.S.C.
§ 1326.1 He appeals his 41-month sentence, claiming (1) that the
trial court violated the Ex Post Facto Clause of the United States
Constitution by using a 1985 conviction to enhance his sentence;
and (2) that he received ineffective assistance of counsel. Finding
1
Section 1326 punishes "any alien who ... has been arrested
and deported ... and thereafter ... enters, attempts to enter, or
is at any time found within the United States."
no basis for reversal or modification of Saenz-Forero's sentence,
we AFFIRM.
FACTS AND PROCEDURAL BACKGROUND
On December 21, 1992, Saenz-Forero arrived at the New Orleans
International Airport aboard a flight from San Jose, Costa Rica. He
presented a falsified passport to immigration authorities. Upon
questioning, he waived his Miranda rights and admitted his true
identity. He was then arrested on a charge of using a false
passport in violation of 18 U.S.C. § 1543. Subsequent checks of
immigration records revealed that Saenz-Forero had previously been
arrested and deported from the United States on September 10, 1986,
after a 1985 conviction for conspiracy to possess and distribute
cocaine. After his deportation in 1986, Saenz-Forero did not apply
for or receive permission to re-enter the United States.
Saenz-Forero was indicted on two counts: (1) attempting to re-
enter the United States without the permission of the Attorney
General after having been arrested and deported; and (2) willful
use of an altered passport. He pleaded guilty to the re-entry
count, and the government moved to dismiss the passport count in
accordance with the plea agreement.
Saenz-Forero was sentenced on May 19, 1993. The trial court
used his prior drug conviction to increase his sentence under 8
U.S.C. § 1326(b)(2)2 and the corresponding sentence enhancement
2
"In the case of any alien [who attempts to re-enter the
United States after having been previously arrested and deported]
whose deportation was subsequent to a conviction for commission
of an aggravated felony, such alien will be fined under [Title
18], imprisoned not more than 15 years, or both." 8 U.S.C. §
2
provision in the United States Sentencing Guidelines.3 Saenz-
Forero's 1985 conviction is an "aggravated felony" for the purpose
of § 2L1.2(b)(2) and § 1326(b)(2), according to both Guideline and
statutory definitions in effect in 1992 when he attempted to re-
enter the United States. 8 U.S.C. § 1101(a)(43); U.S.S.G. §
2L1.2(b)(2), comment.(n.7)(Nov. 1992). Cocaine is a "controlled
substance" under 21 U.S.C. § 806(6), and conspiring to distribute
cocaine is a "drug trafficking crime" as defined in 18 U.S.C. §
924(c)(2).4
After the trial court applied the 16-level increase called for
in § 2L1.2(b)(2), as well as a three-level decrease for acceptance
of responsibility, Saenz-Forero's total offense level was 21. His
criminal history category was II, resulting in a sentencing range
1326(b)(2).
Mere re-entry after deportation subjects the defendant only
to a two-year maximum sentence under § 1326(a). Entry after
conviction for a non-aggravated felony subjects a defendant to a
maximum term of five years under § 1326(b)(1). We have held that
§ 1326(b)(2), which subjects prior aggravated felons to a term of
up to 15 years, is a sentence enhancement provision rather than
an independent criminal offense. United States v. Vasquez-Olvera,
999 F.2d 943, 945 (5th Cir. 1993)(holding that the prior
aggravated offense is not an element of the crime and does not
have to be alleged in the indictment), cert. denied, 114 S.Ct.
889 (1994); Accord, United States v. Crawford, 18 F.3d 1173, 1178
(4th Cir. 1994); but see United States v. Campos-Martinez, 976
F.2d 589, 591-92 (9th Cir. 1992)(holding that subsections (a) and
(b) constitute separate crimes).
3
U.S.S.G. § 2L1.2 sets a base offense level of 8 for
"unlawfully entering or remaining in the United States," then
provides in § 2L1.2(b)(2) that "[i]f the defendant previously was
deported after a conviction for an aggravated felony, increase by
16 levels."
4
For a discussion of the different functions of §
2L1.2(b)(2) and § 1326(b)(2), see United States v. Forbes, 16
F.3d 1294, 1300 & n.9 (1st Cir. 1994).
3
of 41 months to 51 months. The trial court chose the bottom of the
range, sentencing Saenz-Forero to 41 months of incarceration.
DISCUSSION
Saenz-Forero, who brings this appeal pro se, challenges his
sentence with two issues on appeal. (1) D i d t h e t r i a l c o u r t ' s
enhancement of Saenz-Forero's sentence under 8 U.S.C. § 1326(b)(2)
and U.S.S.G. § 2L1.2(b)(2) for his 1985 aggravated felony
conviction violate the Ex Post Facto Clause of the Constitution?
(2) Was Saenz-Forero denied effective assistance of counsel?
Issue 1: Ex Post Facto Argument
Saenz-Forero, raising an issue of first impression in the
Fifth Circuit, alleges an ex post facto violation because his drug
conviction -- the "aggravated felony" used to enhance his sentence
-- occurred in 1985, before such a drug conviction was classified
as an "aggravated felony," and before the enactment of the
sentencing enhancement provisions in 18 U.S.C. § 1326(b)(2) and
U.S.S.G. § 2L1.2(b)(2). The relevant dates are set out below:
January 30, 1985 - Saenz-Forero is convicted of conspiring to
possess and distribute cocaine.
September 10, 1986 - Saenz-Forero is arrested and deported from the
United States.
November 18, 1988 - 8 U.S.C. § 1326 is amended effective this date
to provide for a 15-year maximum sentence for a defendant who
attempts to illegally re-enter the United States after having been
previously deported following an aggravated felony conviction. The
amending legislation also added a new statutory provision, 8 U.S.C.
4
§ 1101(a)(43), which defines "aggravated felony" as including any
drug trafficking crime.
November 1, 1991 - U.S.S.G. § 2L1.2 is amended effective this date
by the addition of a new subsection (b)(2), providing for a 16-
level increase in the base offense level of a defendant who
attempts to illegally re-enter the United States after having been
previously deported following an aggravated felony conviction. The
amendment to § 2L1.2 also added Application Note 7, which defines
"aggravated felony" to include any illicit trafficking in a
controlled substance.
December 21, 1992 - Saenz-Forero, using an altered passport,
attempts to illegally re-enter the United States and is arrested.
January 7, 1993 - Saenz-Forero is indicted.
February 3, 1993 - Saenz-Forero pleads guilty to a violation of 8
U.S.C. § 1326(b)(2).
May 19, 1993 - Saenz-Forero is sentenced.
Saenz-Forero, in his pro se brief, argues that "the aggravated
felony statute did not exist at the time of appellant's original
conviction," and that his 1985 conviction occurred "before the
statute declared drug convictions to be conviction of an aggravated
felony." He asks the Fifth Circuit to "remand for re-sentencing in
compliance with the law in effect at the time of appellant's
original conviction, thus, remanding for removal of the 16-level
enhancement."
Saenz-Forero's argument seems to be that the district court's
application to him of the harsher penalties in 8 U.S.C. §
5
1326(b)(2) and U.S.S.G. § 2L1.2(b)(2) violates the Ex Post Facto
Clause of the Constitution.5 U.S. CONST., art. I, § 9, cl. 3 ("No
... ex post facto Law shall be passed."). An ex post facto law is
a criminal or penal measure which is retrospective and is
disadvantageous to the offender because it may impose greater
punishment. United States v. Leonard, 868 F.2d 1393, 1399 (5th Cir.
1989), overruled on other grounds by United States v. Taylor, 495
U.S. 575, 579 & n.2 (1990), and cert. denied, 496 U.S. 904 (1990).
A central concern of the ex post facto prohibition is to assure
that legislative acts "give fair warning of their effect and permit
individuals to rely on their meaning until explicitly changed."
Miller v. Florida, 482 U.S. 423, 430 (1987)(quoting Weaver v.
Graham, 450 U.S. 24, 28-29 (1981)). We have held that a statute
violates the Ex Post Facto Clause if the statute (1) punishes as a
crime an act previously committed which was not a crime when it was
done; (2) increases the punishment for a crime after the crime is
committed; or (3) deprives a criminal defendant of a defense that
5
Saenz-Forero raises this issue for the first time on
appeal, so our review must be for "plain error" under FED. R.
CRIM. P. 52(b) and United States v. Olano, 113 S.Ct. 1770, 1777-
78 (1993). Under Olano, a federal appellate court may not review
an unpreserved claim of error unless: (1) there was an actual
error; (2) the error was "plain," i.e., clear under current law;
and (3) it affected the defendant's "substantial rights." Even
when all three prongs are met, Olano holds, the appellate court
has discretion as to whether to correct the error. We hold that
there was no error in Saenz-Forero's sentence, so we reach only
the first step of Olano.
6
was legally available at the time the act was committed. United
States v. Brechtel, 997 F.2d 1108, 1113 (5th Cir.), cert. denied,
114 S.Ct. 605 (1993).
This Circuit has not yet addressed the precise issue Saenz-
Forero raises. But a recent First Circuit case is squarely on point
against his ex post facto argument. United States v. Forbes, 16
F.3d 1294, 1302 (1st Cir. 1994). In addition, this Circuit and the
Supreme Court have upheld recidivist statutes in the face of
similar ex post facto challenges. Leonard, 868 F.2d at 1399-1400
(citing Gryger v. Burke, 334 U.S. 728, 732 (1948)); Perkins v.
Cabana, 794 F.2d 168, 169 (5th Cir.), cert. denied, 479 U.S. 936
(1986).
In Leonard, the defendant claimed that his sentence could not
be enhanced (pursuant to a recidivist statute giving a harsher
sentence to offenders with three prior convictions for certain
felonies) due to convictions that pre-dated the enactment of the
recidivist statute. We upheld his conviction:
"Leonard's argument reflects a misunderstanding as to the
function of his [prior] convictions under the statute. Neither
his conviction nor the sentence he complains of punishes him
for these prior offenses. Those offenses merely led to an
enhanced sentence for his new crime. Leonard pled guilty to
[the new crime] on May 26, 1988, after the effective date of
[18 U.S.C.] § 924(e). Section 924(e) is not retrospective
because it bases enhancement of his sentence upon convictions
which preceded its enactment."
Leonard, 868 F.2d at 1399-1400 (holding that § 924(e) did not
7
violate the Ex Post Facto Clause).6 We also upheld a Mississippi
recidivist statute against a similar constitutional challenge in
Perkins v. Cabana, 794 F.2d 168, 169 (5th Cir.), cert. denied, 479
U.S. 936 (1986).
"Perkins argues that [Miss. Code Ann.] § 99-19-81 is an
unconstitutional ex post facto law. He asserts that the law
impermissibly applies to convictions that occurred as many as
ten years before the effective date of the law, and that the
requirement of the maximum possible sentence for the habitual
offender impermissibly increases the punishment for the crime
after its commission.
This retroactivity argument misses the mark. The statute
defines and fixes the punishment for future felony offenses.
That it does so in terms of past offenses does not punish or
increase the punishment for those past offenses. The State has
done no more than classify felony recidivists in a different
category for punishment purposes than the category provided for
first felony offenders. No person is exposed to the increased
penalty unless he commits a felony after the enactment."
Perkins, 794 F.2d at 169. The United States Supreme Court similarly
held that a recidivist statute was not an unconstitutional ex post
facto law even though the prior offense, which classified the
accused as a habitual offender, occurred prior to the effective
date of the recidivist statute. Gryger v. Burke, 334 U.S. 728, 732
(1948)(upholding recidivist statute against ex post facto
challenge).
In this case, Saenz-Forero is asserting essentially the same
argument that we rejected in Perkins and Leonard, and that the
Supreme Court rejected in Gryger. And, like the defendants in those
cases, Saenz-Forero was convicted for conduct that occurred after
the enactment of the statute that criminalized his conduct and
6
Leonard was overruled by the United States Supreme Court on
an unrelated point. United States v. Taylor, 495 U.S. 575, 579 &
n.2 (1990).
8
established the punishment for that conduct. His attempt to re-
enter the United States in violation of 8 U.S.C. § 1326 occurred in
1992. The subsection setting a harsher sentence for prior
aggravated felons, 8 U.S.C. § 1326(b)(2), was enacted in 1988, and
the statutory definition of "aggravated felony" in 8 U.S.C. §
1101(a)(43) also was enacted in 1988. The applicable sentencing
guideline provision and definition, U.S.S.G. § 2L1.2(b)(2) &
comment (n.7), became effective on November 1, 1991, also before
Saenz-Forero's 1992 attempted re-entry. The fact that his prior
aggravated felony conviction occurred in 1985 does not change the
analysis, according to the case law upholding recidivist statutes.
Gryger, 334 U.S. at 732; Leonard, 868 F.2d at 1399-1400; Perkins,
794 F.2d at 169.
In addition, the First Circuit explicitly rejected Saenz-
Forero's argument in United States v. Forbes, 16 F.3d 1294, 1302
(1st Cir. 1994). In that case, Jamaican citizen Robert George
Forbes was convicted under 8 U.S.C. § 1326 for unlawfully
attempting to re-enter the United States after having been
previously arrested and deported. Forbes appealed his sentence,
arguing that the use of prior convictions to trigger the aggravated
felony enhancement provision of § 1326(b)(2) violated the Ex Post
Facto Clause because the prior convictions occurred prior to the
enactment of § 1326(b)(2). The First Circuit rejected the ex post
facto argument and affirmed Forbes' sentence:
"Forbes cannot claim that subsection (b)(2) makes more onerous
the punishment for crimes committed before its enactment.
Forbes is being punished for the crime of unlawful re-entry, in
violation of § 1326. The enhancement provision increases the
9
punishment for this crime. It does not affect the punishment
that Forbes received for the crimes committed prior to the
effective date of the Act. As the [Supreme Court in Gryger, 334
U.S. at 732,] observed, the fact that prior convictions that
[are] factored into a defendant's increased sentence preceded
the enactment of an enhancement provision does not render the
Act invalidly retroactive. Rather, an enhanced penalty is not
to be viewed as either a new jeopardy or additional penalty for
the earlier crimes. It is a stiffened penalty for the latest
crime, which is considered to be an aggravated offense because
[it is] a repetitive one."
Forbes, 16 F.3d at 1302 (citations omitted). The First Circuit also
upheld the decision of the sentencing court to increase Forbes'
base offense level by 16 levels pursuant to § 2L1.2(b)(2). Id. at
1301.
Guided by the First Circuit's persuasive reasoning in Forbes
-- as well as by the analogous precedent in Gryger, Perkins and
Leonard -- we hold that the enhancement of Saenz-Forero's sentence
under § 1326(b)(2) and § 2L1.2(b)(2) for his 1985 aggravated felony
conviction did not violate the Ex Post Facto Clause.
Issue 2: Ineffective Assistance Claim
Saenz-Forero also argues that he was denied effective
assistance of counsel because his attorney did not object to the
16-level increase.7 To prevail on this claim, Saenz-Forero must
demonstrate that his attorney's performance was deficient and that
the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish prejudice under
7
Generally, a claim of ineffective assistance cannot be
raised for the first time on direct appeal. United States v.
Bounds, 943 F.2d 541, 544 (5th Cir. 1991), cert. denied, 114
S.Ct. 135 (1993). We will address the claim, however, if the
record provides substantial details about the attorney's conduct.
Here, Saenz-Forero's ineffective assistance claim is related to
his ex post facto claim, so we will address it.
10
Strickland, a defendant must show that his attorney's errors were
so serious as to render the proceedings unreliable and
fundamentally unfair. Lockhart v. Fretwell, 113 S.Ct. 838, 844
(1993). As was discussed above, the sentencing court correctly
applied the 16-level enhancement under § 2L1.2(b)(2). Therefore, an
objection by Saenz-Forero's attorney on this point could not have
changed the sentence, and thus Saenz-Forero cannot demonstrate
prejudice under Strickland.8 His sentence is AFFIRMED.
8
Cf. United States v. Rosalez-Orozco, 8 F.3d 198, 202 (5th
Cir. 1993)(evidence was sufficient to support conviction, so
defendant could not show Strickland prejudice from counsel's
failure to move for acquittal).
11