United States Court of Appeals,
Eleventh Circuit.
No. 94-9134.
UNITED STATES of America, Plaintiff-Appellee,
v.
Romel CASTRILLON-GONZALEZ, Defendant-Appellant.
March 13, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:94-00248-CR-1-ODE), Orinda D. Evans,
Judge.
Before BIRCH, Circuit Judge, GODBOLD, Senior Circuit Judge, and
O'KELLEY*, District Judge.
O'KELLEY, District Judge:
This case is before the court on defendant-appellant's appeal
of a sentence received on September 28, 1994. The court finds that
the district judge properly applied the United States Sentencing
Commission Guidelines in imposing the sentence and therefore
affirms the decision below.
Facts
Defendant was charged with being an alien found in the United
States without the permission of the Attorney General, in violation
of 8 U.S.C. § 1326. Defendant entered a guilty plea to the one
count indictment on July 18, 1994. On September 28, 1994,
defendant was sentenced to serve thirty-seven (37) months in
prison, followed by three (3) years of supervised release and
payment of a special assessment of Fifty Dollars ($50.00).
Defendant is a native and citizen of Colombia. He was
*
Honorable William C. O'Kelley, U.S. District Judge for the
Northern District of Georgia, sitting by designation.
previously deported from the United States on three prior
occasions: January 21, 1983, January 2, 1984, and July 30, 1986.
On July 25, 1986, defendant was convicted of being found in the
United States after deportation, in violation of 8 U.S.C. § 1326.
As noted, defendant was deported and placed on five years
probation. While in the United States illegally on previous
occasions, defendant was convicted of, inter alia, resisting
arrest, fleeing and attempting to elude police, disorderly conduct,
providing a false name, contempt of court, criminal trespass, a
probation violation, possession of marijuana, driving under the
influence (twice), public indecency, obstruction of an officer,
leaving the scene of an accident, and forgery. Defendant has used
sixteen aliases, two dates of birth, and three social security
numbers.
Defendant was sentenced for the crime underlying this appeal
pursuant to a guilty plea. The presentence report, prepared by the
United States Probation Office, included two criminal history
points, ultimately approved by the district court, for a state
conviction and sentence for resisting arrest. The date of that
state sentence was October 7, 1982. The probation officer
suggested to the defendant that there was a possibility that the
judge might employ an upward departure due to the fact that the
criminal history category did not reflect the seriousness of
defendant's past criminal conduct, nor did it reflect defendant's
propensity to engage in future criminal conduct.
The district court, as noted, included the two criminal
history points attributed to the October 7, 1982, conviction,
resulting in a total of fourteen criminal history points, and a
criminal history of Category VI. The total offense level was
deemed to be six. The court then upwardly departed six levels due
to the inadequacy of the criminal history and the likelihood that
defendant would engage in criminal activity in the future. The
range prescribed was thirty to thirty-seven months, and the
sentence imposed was thirty-seven months.
There are two questions of law on appeal: whether the
district court correctly included the 1982 conviction in
calculating the criminal history category, and whether the district
court correctly determined that an upward departure of six levels
was justified.
Standard of Review
Review of a district court's departure from the sentencing
guidelines is governed by a three-part analysis: (1) the legal
question of the district court's guideline interpretation is
reviewed de novo; (2) the factual basis for a departure is
considered pursuant to the clear error standard of review; and,
(3) the direction and degree of departure are reviewed for
reasonableness. United States v. Maurice, 69 F.3d 1553, 1556 (11th
Cir.1995); United States v. Weaver, 920 F.2d 1570, 1573 (11th
Cir.1991). This is consistent with the statutory framework
establishing the Sentencing Commission, which sets forth a limited
sphere of appellate review. 18 U.S.C. § 3742(f). See also
Williams v. United States, 503 U.S. 193, 198-99, 112 S.Ct. 1112,
1118-19, 117 L.Ed.2d 341 (1992).
Computation of the Criminal History Category
The United States Sentencing Commission Guidelines provide for
the inclusion of two criminal history points for a prior sentence
of imprisonment between sixty days and thirteen months. United
States Sentencing Commission, Guideline Manual, § 4A1.1(b)
(Nov.1994) ("USSG"). Such a sentence is included, however, only if
it was imposed within ten years of the defendant's commencement of
the instant offense. U.S.S.G. § 4A1.2(e)(2).
Defendant argues that the underlying offense of being "found
in" the United States illegally is not encompassed by the
aforementioned guideline sections, insofar as he was arrested on
December 9, 1993, more than ten years after his 1982 conviction.
Defendants date of illegal entry into the United States was at some
point in February, 1991, less than ten years after his 1982
conviction. Thus, the operative question is at what point is the
offense at issue deemed to commence.
Defendant pleaded guilty to a violation of 8 U.S.C. § 1326.
That section states that "any alien who has been arrested or
deported ... and thereafter ... enters, attempts to enter, or is at
any time found in the United States ... shall be fined under Title
18, or imprisoned not more than 2 years, or both." Id. (emphasis
added). The added emphasis in the language reproduced above is
significant. The statute contains three separate and distinct
offenses, set forth disjunctively: entering, attempting to enter,
or being found in the United States. This court has previously had
the opportunity, to some extent, to visit this issue. This court
previously held:
In order for "found in" and "enters" to have different
meanings, thus to avoid "enters" being a mere redundancy,
"found in" must apply to aliens who have entered
surreptitiously, bypassing a recognized immigration point of
entry. The phrase "found in" is synonymous with "discovered
in." ... Congress added the phrase "found in" to alleviate
the problem of prosecuting aliens who enter in some illegal
manner.
United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th
Cir.1991) (citation omitted). Although the question before the
court in Canals-Jimenez was not identical with that in the case sub
judice, it is instructive. The language of § 1326 clearly
contemplates three distinct offenses, the violation of any of which
can trigger the penalty set forth in the latter portion of the
statute. This reading is consistent with the well established
axiom of statutory construction "that a statute is to be
interpreted so that no words shall be discarded as being
meaningless, redundant, or mere surplusage." Id. at 1287
(citations omitted). It is also consistent with this court's
interpretation of Canals-Jimenez, in United States v. Gay, 7 F.3d
200, 202 (11th Cir.1993), wherein a defendant who entered the
United States illegally, albeit by passing through immigration with
a passport that did not indicate his prior deportation, was deemed
to be "found in" the United States in violation of § 1326.
Applying this reading of § 1326 to the facts of this case,
confirms the propriety of the district court's ruling. Defendant
committed the offense of entering the United States illegally in
February, 1991. That offense was completed upon entry, and the
relevant date is within ten years of the 1982 conviction, thus
falling under U.S.S.G. § 4A1.2(e)(2). Defendant did not plead
guilty to this offense. The crime of being "found in" the United
States illegally was not complete until defendant's arrest on
December 9, 1993. This is the charge to which defendant pleaded
guilty. However, that crime was commenced by the aforementioned
illegal entry in February, 1991. The distinction between
completion and commencement is critical, inasmuch as § 4A1.2(e)(2)
counts any sentence imposed "within ten years of the defendant's
commencement of the instant offense...." U.S.S.G. § 4A1.2(e)(2)
(emphasis added). The fact that the illegal entry is capable, in
and of itself, of constituting a distinct criminal offense, does
not preclude it from being the predicate act to the crime of being
illegally "found in" the United States. By definition, one must
enter the United States, either legally or illegally, in order to
be found therein. Thus, it is entirely consistent with the
structure of § 1326 to conclude that the commencement of the crime
of being "found in" the United States is at the point of entry.1
Accordingly, the district court's inclusion of this offense was
correct.
The Upward Departure
The Sentencing Guidelines provide a mechanism by which a
district court judge may depart from the guidelines range "[i]f
reliable information indicates that the criminal history category
does not adequately reflect the seriousness of the defendant's past
criminal conduct or the likelihood that the defendant will commit
other crimes...." U.S.S.G. § 4A1.3. The court may consider
factors such as prior sentences which were not used in computing
1
It is possible that one could commence the offense of being
"found in" by remaining in the United States after the expiration
of a legitimate visa. In that case, the crime would not commence
with the individual's entry, but rather at the point the visa
expired.
the criminal history category, prior similar misconduct evidenced
by a civil adjudication of noncompliance with an administrative
order, or prior similar adult conduct which did not result in a
criminal conviction. Id.
In the case at bar, defendant was placed on notice as to the
possibility of an upward departure in the Presentence Report. The
district court, at the sentencing hearing, did in fact depart
upward. The court found as follows:
[W]hat I see here is a clear pattern of the defendant's
re-entering the country after being deported, and after at
least one conviction for illegal re-entry. I also see
interspersed in those periods of time when the defendant had
been in the United States that he has been committing
crimes....
I think when there have been four illegal entries, one of
which has resulted in a conviction and which was followed by
yet another illegal re-entry, that that's a pretty good reason
to think that the defendant might be coming back.
(R-2-9-10; 11). Defendant's past pattern of criminal activity is
set forth in the first part of this opinion. Of particular import,
though, is defendant's multiple prior illegal entry and re-entries
into the United States as an adult, and his repeated failure to
comply with administrative orders not to reenter the country
without permission.
Based on the foregoing conclusions, the district court
determined that a departure beyond a Category VI criminal history
was appropriate. The possibility of such a conclusion is
anticipated by the Guidelines. "The Commission contemplates that
there may, on occasion, be a case of an egregious, serious criminal
record in which even the guideline range for Criminal History
Category VI is not adequate to reflect the seriousness of the
defendant's criminal history. In such a case, departure above the
guideline range for a defendant with Criminal History Category VI
may be warranted." U.S.S.G. § 4A1.3. The Guidelines further note
that the "nature of the prior offenses rather than simply their
number" should be of greater import in the court's evaluation. Id.
The facts of the case at bar fit this situation. Defendant's prior
criminal conduct is, at least in part, identical to the offense to
which he has pleaded guilty. Moreover, his propensity to commit
other crimes while in the United States illegally is
uncontroverted.
Defendant raises a number of arguments in an effort to
challenge the legitimacy of the upward departure. First, defendant
cites the U.S.S.G. Application Notes, which state: "In the case of
a defendant with repeated prior instances of deportation without
criminal conviction, a sentence at or near the maximum of the
applicable guideline range may be warranted." U.S.S.G. § 2L1.2,
Commentary n. 2 (Nov. 1993).2 This argument is without merit,
because defendant has indeed been convicted on a prior occasion for
reentry subsequent to deportation. Defendant also suggests that
the district court did not adequately articulate its basis for an
upward departure. This court has previously held that "an
appellate court may properly consider the entire record from the
2
It is interesting to observe that the amended guidelines
state: "In the case of a defendant with repeated prior instances
of deportation without criminal conviction, an upward departure
may be warranted." U.S.S.G. § 2L1.2, Commentary n. 2 (Nov.
1995). Of course, defendant is bound only by those guidelines in
effect at the time of his sentencing, 18 U.S.C. § 3553(a)(4);
United States v. Marin, 916 F.2d 1536, 1538 (11th Cir.1990), but
the amendment is worth noting.
sentencing hearing, including the [Presentence Report], in
reviewing the district court's factual support for its decision."
United States v. Brown, 9 F.3d 907, 912 (11th Cir.1993) (citing
United States v. Suarez, 939 F.2d 929, 933-34 (11th Cir.1991)).
Pursuant to this standard, the court is satisfied, as evidenced by
the excerpt reproduced above, that the district court sufficiently
articulated the grounds for its upward departure, and that these
constitute legally acceptable reasons. There is ample factual
support in the record for this determination, and the direction and
degree of departure are reasonable.
Conclusion
The sentence imposed by the district court is hereby AFFIRMED.