[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-13461 JUNE 2, 2003
________________________ THOMAS K. KAHN
D.C. Docket No. 02-60026-CR-DTKH CLERK
UNITED STATES OF AMERICA,
Respondent-Appellee,
versus
LESZEK KRAWCZAK,
Petitioner-Appellant.
___________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(June 2, 2003)
Before BIRCH, CARNES and HUG *, Circuit Judges.
HUG, Circuit Judge:
Leszek Krawczak (“Krawczak”) appeals a 16-level sentencing enhancement
applied to his conviction for attempted reentry of a deported alien subsequent to a
*
Honorable Procter Hug, Jr., United States Circuit Judge for the Ninth Circuit, sitting by
designation.
felony conviction. The district court enhanced his sentence pursuant to the United
States Sentencing Guidelines because it determined Krawczak had a prior
conviction for an alien smuggling offense committed for profit. The district court
concluded the prior conviction was ambiguous as to whether the offense was
committed for profit. Consequently, the district court examined the facts
underlying the conviction to determine that the offense was committed for profit.
The issue before us is whether the court was justified in going beyond the
conviction of the prior statutory offense to examine the facts underlying the
conviction and thus determine that the prior offense was committed for profit.
I
In 1994, Krawczak pled guilty to one count of an eight count indictment for
aiding and abetting the transportation of illegal aliens within the United States in
violation of the 1993 version of 8 U.S.C. § 1324(a)(1)(B).
The 1993 version of the statute provided in relevant part that any person
who:
(B) knowing or in reckless disregard of the fact than an alien has come
to, entered, or remains in the United States in violation of law,
transports, or moves or attempts to transport or move such alien within
the United States by means of transportation or otherwise, in
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furtherance of such violation of law . . . shall be fined in accordance
with Title 18, or imprisoned not more than five years, or both, for each
alien in respect to whom any violation of this paragraph occurs.
8 U.S.C. § 1324(a)(1)(B) (1993).
The 1994 presentence investigation report (“PSI”) assigned Krawczak a
base offense level of 9. The 1993 Guidelines Manual applicable to this case
provided in § 2L1.1(b)(1) that if the offense had been committed “other than for
profit,” three levels should be deducted. Application Note 1 to § 2L1.1 stated that
“for profit” meant for financial gain or commercial advantage. Krawczak did not
receive a 3-level deduction from his offense level. After receiving a 2-level
deduction for acceptance of responsibility, Krawczak’s total offense level was 7
with a criminal history category of I. His guidelines sentencing range was 0-6
months. Had three levels been deducted from Krawczak’s offense, his range
would have been the same 0-6 months. Krawczak did not object, and had no
incentive to object, to the denial of the 3-level “other than for profit” deduction.
He was placed on one year unsupervised probation and fined $500.
In 2002, Krawczak pled guilty to attempted reentry of a deported alien
subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2).
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Krawczak was arrested after being referred to the United States Immigration
Service for secondary questioning when he arrived at Fort Lauderdale
International Airport and applied for admission to the United States as a non-
immigrant visitor for pleasure. The probation officer determined that Krawczak’s
base offense level should be enhanced 16-levels under U.S.S.G. §
2L1.2(b)(1)(A)(vii) because his past conviction for an alien smuggling offense
was committed for profit, referring to his 1994 conviction of 8 U.S.C. §
1324(a)(1)(B). Krawczak objected, claiming that he did not commit this prior
offense for profit.
At his sentencing hearing, Krawczak reiterated his objection to the 16-level
enhancement. If the prior offense was not committed for profit, Krawczak should
have received only an 8-level enhancement for a deportation following an
aggravated felony pursuant to U.S.S.G. § 2L1.2(b)(1)(C). The government
attempted to call a witness to testify to the underlying facts of the 1994 conviction.
Krawczak objected, claiming that under Taylor v. United States, 495 U.S. 575
(1990) and United States v. Spell, 44 F.3d 936 (11th Cir. 1995), the court was not
allowed to engage in fact-finding concerning the prior conviction but instead was
limited to an examination of the elements of the offense, the indictment, and the
judgment and commitment order.
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The district court overruled Krawczak’s objection and allowed the
government to present case-specific documents. The government introduced the
1993 indictment, the 1994 judgment and commitment order, and the 2002 version
of 8 U.S.C. § 1324, stating that it could not locate the 1993 version of the statute.
Counsel for Krawczak likewise did not have a copy of the 1993 version to present
to the district court. The court questioned the parties as to whether they thought
the 1993 statute was broad enough to encompass both for profit and not for profit
conduct. The government could not remember well enough to answer, and
defense counsel stated that different parts of the statute covered different kinds of
conduct. Based on the 2002 language, the court decided that the 1993 version was
ambiguous and that case-specific documents could be presented. The court
admitted the 1994 PSI over the objection of Krawczak. The court suggested that
the record be augmented to include the 1993 version of the statute.
The 1994 PSI indicated Krawczak’s base offense level for the conviction
was 9. The government contended that if the offense was not committed for
profit, the 1993 guidelines, which the government did have available at this
sentencing, allowed for a 3-level reduction in the base offense level and Krawczak
did not receive this 3-level reduction. The government also asserted, apparently in
reliance of the 2002 statute, that because Krawczak was subject to a sentence of
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ten years, he must have been sentenced to a for profit offense. Krawczak
responded that the failure to receive the 3-level reduction from his base level did
not mean that he committed the crime for profit because he faced the same
sentence whether or not he received the 3-level reduction. He added that nowhere
in the indictment or judgment did it say that the offense was committed for profit.
The government responded that the 1994 PSI stated that Krawczak promised to
pay another $300 per person for transporting aliens. Krawczak contended that he
was going to pay someone else but was not going to receive money himself for the
offense.
The court stated that this promise was sufficient to establish profit motive.
The court then commented:
I want to tell you, candidly, I feel uncomfortable and I would feel
uncomfortable predicating a decision simply on the fact that the PSR
shows an offense level of 9, even though we all agree the offense level
of 9 would be predicated on a for profit situation. I am equally
uncomfortable, although I think it is confirmatory, when the
presentence investigation report reflects the potential maximum of ten
years when it’s ten years for profit and five years without.
But I think what resolves, whatever ambiguity is there is the factual
statement in the record in the presentence investigation report, and this
presentence investigation report specifies what is obviously a
significant aspect of the crime, and that is that money was going to be
obtained.
The court then overruled Krawczak’s objection and found that the 1994
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conviction was an offense committed for profit, and therefore, the 16-level
enhancement under § 2L1.2(b)(1)(A)(vii) was appropriate. The district court
sentenced Krawczak to 37 months’ imprisonment and 2 years’ supervised release.
II
Krawczak argues there is nothing ambiguous about the 1993 version of 8
U.S.C. § 1324(a)(1)(B). No subsection of § 1324(a)(1) punished conduct for
profit. He was subject to a sentence of ten years’ imprisonment not because he
transported aliens for profit (as the 2002 statute provides), but because he helped
transport two people, receiving a sentence of five years for each (as the 1993
statute provides). A different subsection of the 1993 statute, 8 U.S.C. §
1324(a)(2)(B)(ii) prohibits bringing or attempting to bring an alien to the United
States for the purpose of commercial advantage or private financial gain. He was
not charged with nor did he plead guilty to violating § 1324(a)(2)(B)(ii), the for
profit subsection. Krawczak also maintains that the 1994 PSI is unreliable
because even though he did not receive the 3-level reduction for not for profit
conduct, his base offense level and sentence would not have changed.
The government replies that Krawczak’s 1994 judgment was ambiguous
with respect to the facts underlying the conviction, and this ambiguity had to be
resolved to determine whether or not the 16-level enhancement should apply. It
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also notes that Krawczak did not contest the factual findings contained within the
1994 PSI during the 1994 sentencing. Krawczak had, of course, objected to the
admission of the entire PSI.
This Court reviews de novo the district court’s interpretation of criminal
statutes and sentencing guidelines. United States v. Padilla-Reyes, 247 F.3d 1158,
1159 (11th Cir. 2001).
III
The issue on appeal is a narrow one. We must decide whether the district
court properly determined that the 1993 statute and 1994 judgment were
ambiguous in order to justify examining the 1994 presentence report for facts to
inform the court whether the 16-level guidelines enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(vii) should apply.
The Supreme Court has stated that a sentencing court applying a statutory
enhancement is generally required to consider only the fact of conviction and the
statutory definition of the prior offense. Taylor, 495 U.S. at 602. A court could
depart from this categorical approach to consider other evidence concerning a
defendant’s prior crimes “in a narrow range of cases where a jury was actually
required to find all elements” of a required crime. Id. One rationale in favor of
this categorical approach is the practical difficulties a sentencing court would face
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engaging in an elaborate, historical fact-finding process, as well as the potential
unfairness to a defendant. Id. at 601-02.
This Circuit has discussed Taylor’s categorical approach to statutory
enhancements in the context of sentencing enhancements under the United States
Sentencing Guidelines. Spell, 44 F.3d at 939. In Spell, this court noted that while
the Sentencing Guidelines’ commentary rejects Taylor’s categorical approach, the
principle against holding mini-trials on a defendant’s prior convictions counsel
against looking beyond the fact of conviction. Id. Consequently, in applying
Sentencing Guidelines enhancements, the ability to look behind a state conviction
in federal sentencing is “very limited.” It is limited to instances where the
judgment of conviction and the statute are ambiguous. Id. If no ambiguities exist,
the Sentencing Guidelines prohibit a court from reviewing the underlying facts of
a conviction to determine whether guidelines enhancement should apply. United
States v. Gay, 251 F.3d 950, 952 (11th Cir. 2001).
In Spell, the ambiguity of the conviction and the statute under which Spell
was prosecuted required the sentencing court to look behind the judgment of
conviction. 44 F.3d at 939. The judgment of conviction entered into through a
plea agreement stated the offense as a “burglary of a structure,” yet the statute
under which he was convicted encompassed three different burglary scenarios, all
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of which could be a burglary of a structure.1 Id. at 939-40. The sentencing court
could not determine from the conviction and statute whether Spell burglarized a
dwelling, which would subject him to a guidelines enhancement, or unaggravated
burglary of a structure, which would not.
The statute under which Krawczak was convicted differs from the Florida
burglary statute at issue in Spell. Unlike Spell, the 1993 version of §
1324(a)(1)(B) does not encompass multiple degrees of offenses. Its statutory
elements do not differentiate between offenses committed for profit, and those
1
Fla. Stat. § 810.02 Burglary (1994).
(1) "Burglary" means entering or remaining in a structure or a conveyance with the intent to
commit an offense therein, unless the premises are at the time open to the public or the defendant
is licensed or invited to enter or remain.
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not
exceeding life imprisonment or as provided in § 775.082, § 775.083, or § 775.084, if, in the
course of committing the offense, the offender:
(a) Makes an assault or battery upon any person.
(b) Is armed, or arms himself within such structure or conveyance, with explosives or a
dangerous weapon.
(3) If the offender does not make an assault or battery or is not armed, or does not arm himself,
with a dangerous weapon or explosive as aforesaid during the course of committing the offense
and the structure or conveyance entered is a dwelling or there is a human being in the structure or
conveyance at the time the offender entered or remained in the structure or conveyance, the
burglary is a felony of the second degree, punishable as provided in § 775.082, § 775.083, or §
775.084. Otherwise, burglary is a felony of the third degree, punishable as provided in § 775.082,
§ 775.083, or § 775.084.
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committed not for profit. Moreover, no subsection of the 1993 version of §
1324(a)(1) addressed smuggling either for profit or not for profit. No subsection
of § 1324(a)(1) punished actions done for profit more severely than those done not
for profit. Section 1324(a)(2)(B)(ii), on the other hand, did prohibit a person from
bringing or attempting to bring to the United States any alien for the purpose of
commercial advantage or private financial gain. Krawczak was not indicted for,
nor pled guilty to, violating § 1324(a)(2)(B)(ii). His plea of guilty was to violating
§ 1324(a)(1)(B).
Additionally, unlike Spell, the district court was not faced with a broad
judgment of conviction similar to Spell’s burglary of a structure. 44 F.3d at 939-
40. No ambiguity exists over which subsection of § 1324 Krawczak was
convicted in 1994.
We conclude that the district court erred in its determination that the 1993
statute was ambiguous. Foremost, the district court erroneously relied upon the
2002 version of § 1324(a)(1)(B) rather than the 1993 version under which
Krawczak was convicted. We also hold that, under de novo review, the 1993
version of the statute is not ambiguous. The statutory elements of § 1324(a)(1)(B)
do not differentiate between offenses committed for profit, and those committed
not for profit. Because the 1993 statute and 1994 conviction are not ambiguous,
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the district court should not have considered the 1994 PSI or otherwise engaged in
reviewing the underlying facts of the conviction to determine whether the offense
was committed for profit. Gay, 251 F.3d at 952. The district court may only
enhance the sentence 8-levels for a deportation following an aggravated felony
pursuant to U.S.S.G. § 2L1.2(b)(1)(C).
We VACATE the district court’s sentence and REMAND for resentencing
consistent with this opinion.
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