United States Court of Appeals,
Eleventh Circuit.
No. 94-2001.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSE SANTIAGO PALACIOS-CASQUETE, Defendant-Appellant.
June 15, 1995.
Appeal from the United States District Court for the Middle
District of Florida. (No. 93-100-CR-J-10), William T. Hodges,
District Judge.
Before KRAVITCH and BIRCH, Circuit Judges, and GOODWIN*, Senior
Circuit Judge.
GOODWIN, Senior Circuit Judge:
Jose Santiago Palacios-Casquete pled guilty to being a
deported alien found unlawfully in the United States on December
11, 1992 in violation of 8 U.S.C. § 1326. He appeals his guideline
sentence of 96 months.
The principal contentions on appeal are (1) that the
sentencing court erred in treating 8 U.S.C. § 1326(b)(2) as a
sentencing enhancement subsection rather than as the denunciation
of a separate crime, and (2), that because Palacios-Casquete was
present within the boundaries of the United States after his
deportation in 1987 for some years prior to December 11, 1992, when
he was visited by a special agent of the INS at a Florida state
prison, he was entitled to be sentenced according to the guidelines
in effect earlier than those applicable to the time charged in the
indictment.
*
Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for
the Ninth Circuit, sitting by designation.
I. The Indictment
The charge to which he pled guilty reads: "On or about
December 11, 1992, at Lake Butler, in the Middle District of
Florida, JOSE SANTIAGO PALACIOS-CASQUETE, the defendant herein, an
alien who had been arrested and deported from the United States at
Miami, Florida, on or about March 6, 1987, was found unlawfully in
the United States without first having applied for and received
permission of the Attorney General of the United States to reapply
for admission. In violation of Title 8 United States Code, Section
1326." The indictment form also noted that the maximum penalty was
15 years.
II. The Statute
At his sentencing hearing December 17, 1993, Palacios-Casquete
argued first that Section 1326 creates three distinct levels of
crime and punishment. The first level, subsection (a), to which he
says he pled guilty, covers aliens who have been deported and are
"at any time found in" the United States, for which the penalty is
a fine and custodial punishment not to exceed two years. The
second level, subsection (b)(1), applies to any alien described in
subsection (a) who was deported after a conviction of a felony
(other than an aggravated felony) and who was punishable by a fine
and a custodial sentence not to exceed five years. The third
level, subsection (b)(2) applies to any alien described in
subsection (a) who was deported after a conviction of an aggravated
felony and who was (in 1993) punishable by a fine and a custodial
sentence not to exceed fifteen years.
III. Challenge of Subsection (b)(2)
Palacios-Casquete argues that because the indictment to which
he pled guilty did not mention any prior conviction, he had no
notice that he was pleading to any offense other than being found
in the United States after having been deported. He asserts that
a due process violation occurred when the sentencing court treated
§ 1326(b)(2) as a sentence enhancement provision rather than a
statement of a separate offense. He does not deny his well
documented criminal history, but argues that if the government
intended to rely upon it in prosecuting him, his conviction of one
or more aggravated felonies should have been included in the
indictment before he pled guilty. Accordingly, he asserts that his
guilty plea admitted only facts constituting a violation of
subsection (a) of the statute. It follows, he argues, that he was
entitled to be sentenced, not under subsection (b)(2) which
enhanced his sentence by a factor of seven, but under subsection
(a).
IV. Relevant Guideline Time Period
Palacios-Casquete's second argument is that because he could
have been "found" in state custody on any of several dates after he
was arrested by Florida law enforcement officers in 1988, he was
entitled to be sentenced for violating § 1326 under the guidelines
in effect in 1988, or alternatively, in effect on February 22, 1990
when he was again arrested in Florida, and subsequently convicted
for possession and delivery of cocaine. He argues that the federal
government (INS) must have known of his violation of 8 U.S.C. §
1326 long before it got around to prosecuting him in December of
1992, and therefore it was error to sentence him under the less
lenient punishment scheme in effect at the time charged in the
indictment. This argument ignores his guilty plea, which admitted
the truth of the charge that he was "found" on December 11, 1992.
V. The Sentencing Hearing
The sentencing court considered all of the appellant's
arguments at the sentencing hearing. The court then treated
subsection (b)(2) as a sentence enhancing provision, and not as the
denunciation of a separate offense.
The court accepted the presentence report which increased the
base offense level by 16 pursuant to U.S.S.G. § 2L1.2(b)(2) because
of Palacios-Casquete's 1986 conviction for an aggravated felony,
which preceded his 1987 deportation. After crediting him with a
subtraction of 3 levels for acceptance of responsibility, the
Presentence Report showed a total offense level of 21, and a
criminal history category of VI. The guideline custodial range was
thus 77 to 96 months. (The court imposed the sentence at the upper
end of the range, after noting for the record the defendant's
conspicuous propensity for recidivism.)
VI. "Sentencing Enhancement, or New Crime"
The parties have cited cases from five other circuits which
have dealt with the question whether subsections (b)(1) and (b)(2)
state separate crimes or are merely sentence enhancing provisions
for the specific offense of being found in the United States after
deportation. Only one court has treated the subsections as
defining separate crimes. See United States v. Campos-Martinez,
976 F.2d 589 (9th Cir.1992) (sections 1326(a) and 1326(b) state
separate crimes); United States v. Gonzalez-Medina, 976 F.2d 570
(9th Cir.1992) (same) (citing dicta in United States v. Arias-
Granados, 941 F.2d 996 (9th Cir.1991) (plea bargain)).
All the other circuits have rejected the Ninth Circuit's line
of cases. See United States v. Crawford, 18 F.3d 1173 (4th
Cir.1994) (section 1326(b) is a sentence enhancement provision);
United States v. Forbes, 16 F.3d 1294 (1st Cir.1994) (same);
United States v. Vasquez-Olvera, 999 F.2d 943 (5th Cir.1993) (King
J., dissenting), cert. denied, --- U.S. ----, 114 S.Ct. 889, 127
L.Ed.2d 82 (1994) (same); see also United States v. Cole, 32 F.3d
16 (2d Cir.1994) (a sentence-enhancement provision rather than a
separate offense). See also United States v. Vieira-Candelario,
811 F.Supp. 762 (D.R.I.1993) aff'd by 6 F.3d 12 (1st Cir.1993)
(sections 1326(a) and 1326(b) state separate crimes).
This court has stated, in United States v. McGatha, 891 F.2d
1520, 1522-23 (11th Cir.1990), that we must examine the language,
structure, and legislative history in determining whether the
statute in question denounces a separate crime or provides for an
enhanced sentence. In McGatha, we were dealing with a weapons
charge and a plea agreement. The defendant had been charged with
two counts of violating 18 U.S.C. §§ 922(g)(1) and 924 (a
previously convicted felon in possession of a firearm). McGatha,
after receiving notice that the government would seek enhanced
sentencing under 18 U.S.C. § 924(e)(1), pled guilty to one count of
the indictment.
The government dismissed the other count. The district court
in McGatha treated § 924(e)(1) as a sentence enhancement provision,
and not as the creation of a new, separate offense which must be
alleged in the indictment and proved at trial. We affirmed that
conviction. (It was not necessary inMcGatha to discuss notice and
due process because the plea agreement had followed full disclosure
by the government of its intent to seek the enhanced penalty prior
to the entry of the guilty plea.) It was not necessary in McGatha
to decide, but it has now become necessary to decide whether
section 1326 is a sentencing enhancement statute or a statute in
three parts, each denouncing a separate crime.
We join the four other circuits that discussed the legislative
evolution of § 1326 through its various amendments, and concluded
that Congress intended § 1326 to denounce one substantive
crime—unlawful presence in the United States after having been
deported, with the sentence to be enhanced incrementally for those
aliens who commit the offense after having been deported following
convictions for "nonaggravated" or "aggravated" felonies. We also
find helpful the reasoning of the First Circuit when it considered
the prejudicial effect of placing before the jury an indictment
charging, and proof establishing, that the defendant committed the
offense after having been convicted of specific prior felonies.
United States v. Forbes, 16 F.3d at 1298-1300.
Palacios-Casquete now argues that the government should be
required to plead and prove the former convictions because it is
frequently more difficult to prove former convictions than to prove
that a person present in court has "been found in" the United
States. Whatever may be the litigation strategy and logical
persuasion of these arguments, the sentencing court in this case
applied subsection (b)(2) as an enhancing provision consistently
with our reasoning in McGatha, and that application was free from
error.
VII. Was Date of the Crime Correctly Charged?
Palacios-Casquete's argument that the INS had imputed, or
constructive, notice that he was a previously deported alien
present within the United States at a date earlier than the date
upon which he was actually discovered by an investigating agent to
be a member of Florida's prison population might have some
theoretical attraction if the INS operated in a more perfect world.
However, there is no showing that the fifty states and the
territories send morning reports to the INS revealing the national
origins and immigration status of their incoming prisoners. In the
case at bar, the INS investigator testified that she made routine,
periodic visits to state institutions in her district of
responsibility, and checked the records of new inmates for possible
candidates for deportation or prosecution under § 1326. She
testified that she found Palacios-Casquete in one of her routine
investigations. The trial court accordingly found that there was
no prejudicial or invidious discrimination against this defendant
in the INS proceeding and no reason to back date the offense
(resubmit to the grand jury for an amended indictment) to give the
defendant the benefit of earlier penalty provisions that had been
in effect in 1988 or 1990. The government had no duty to
anticipate that this particular alien was present in the Florida
prison system at any time before he was actually found. We find no
error in this ruling.
VIII. Void for Vagueness
Finally, Palacios-Casquete argues that § 1326 is void for
vagueness, and that this defect, which he characterizes as
jurisdictional, was not waived by his guilty plea. The indictment
clearly charged a violation of 8 U.S.C. § 1326. At the taking of
the guilty plea, Fed.R.Crim.P. 11 was followed, and the defendant
was told in English and Spanish what the potential penalties could
be. Because the statute is not vague, we do not reach the
appellant's request that we review our earlier cases and decide
that a guilty plea does not waive a constitutional challenge to a
criminal statute. Cf. Askew v. Alabama, 398 F.2d 825, 826 n. 1
(5th Cir.1968). A guilty plea, however, does not waive the right
of an accused to challenge the constitutionality of the statute
under which he is convicted. See, e.g., Haynes v. United States,
390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); United States v.
Ury, 106 F.2d 28, 124 A.L.R. 569 (2d Cir.1939).
AFFIRMED.