United States v. Smith

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1722

UNITED STATES OF AMERICA,

Appellee,

v.

TYRONE SMITH,
a/k/a PAUL GLEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]

Before

Torruella, Selya and Stahl,

Circuit Judges.

Annemarie Hassett, Federal Defender Office, for appellant.

Robert E. Richardson, Assistant United States Attorney, with

whom A. John Pappalardo, United States Attorney, was on brief for

appellee.

January 28, 1994

TORRUELLA, Circuit Judge. Defendant-appellant Tyrone

Smith was indicted in the United States District Court for the

District of Massachusetts for unlawful reentry into the United

States following deportation, in violation of 8 U.S.C. 1326.

Smith moved to dismiss the indictment, collaterally attacking the

deportation order upon which the indictment was based. The

district court denied the motion. Smith then entered into a plea

agreement in which he pleaded guilty to the indictment but

reserved the right to appeal from the denial of the motion to

dismiss the indictment. Smith now appeals this denial, as well

as the district court's denial of his motion for a downward

departure from the applicable sentencing guideline range. We

affirm.

I. FACTS

A. The Underlying Deportation

Smith, a citizen of Jamaica, lived in the United States

as a lawful permanent resident. In March of 1989, Smith was

convicted for unlawful possession of a firearm and trafficking in

cocaine. The Immigration and Naturalization Service ("INS")

subsequently commenced deportation proceedings against Smith by

issuing an order to show cause. On September 11, 1991, Smith was

arrested and served with the order to show cause.

On September 20, 1991, Smith appeared before the

immigration court and informed the immigration judge that he was

represented by Paul Carrigan, a Boston attorney. The immigration

judge informed Smith that he should appear with his attorney for

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a deportation hearing on September 27, 1991. The judge also told

Smith that there would be a bond hearing on the same day. Smith

contends that he did not know that the deportation hearing would

take place on September 27, 1991; rather, he thought there would

only be a bond hearing on that date.

Smith appeared at the September 27, 1991 hearing.

Attorney Carrigan did not appear. Another attorney, Manny

Daskal, however, did appear on behalf of Smith, but only with

respect to the bond aspects of the hearing. At this hearing,

when the immigration judge asked Smith if he had counsel to

represent him for the deportation hearing, Smith replied that he

did not. The immigration judge then told Smith that he had been

given ample time to obtain counsel, and that the judge was going

forward with the deportation hearing with Smith representing

himself.

The deportation hearing then commenced, and the

immigration judge explained the procedure that would be followed.

After the evidence had been introduced, the immigration judge

told Smith that based on the types of offenses of which he had

been convicted, a waiver was not available to Smith. The

immigration judge then issued an oral order of deportation.

The immigration judge then announced that notices of

appeal had to be filed by October 7, 1991, and explained the

appeal process to Smith. On October 9, 1991, Smith filed an

appeal with the Board of Immigration Appeals in which Smith

claimed that the immigration judge erred by failing to consider

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the fact that he had five children living in Boston, and that his

wife was mentally ill. Smith did not claim that he had been

denied his right to counsel at the deportation hearing. On

November 14, 1991, before any action was taken with respect to

Smith's appeal, Attorney Carrigan sent a letter to the INS

stating, in pertinent part: "I am an attorney for Tyrone Smith.

I hereby withdraw any pending appeals he may have regarding the

above referenced deportation matter." Smith himself also

submitted a handwritten statement withdrawing his appeal.

B. The Deportation

Smith was deported on November 20, 1991. As part of

the deportation process, the INS gave Smith a notice, INS FORM I-

294, which stated that in the event that he wished to return to

the United States, he had to obtain permission and that "any

deported person who within five years 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 $1000.00." Smith signed the notice, acknowledging his

receipt of the document. INS Form I-294 only set forth the

penalties generally applicable to a violation of 8 U.S.C. 1326,

but did not state the more severe penalties that applied to

aliens, who, like Smith, had been convicted of an aggravated

felony. In fact, the penalty Smith would face if he returned to

the United States without permission was imprisonment for up to

fifteen years.

C. The Subsequent Criminal Prosecution

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Despite the deportation order, Smith returned to the

United States, and was subsequently apprehended. On November 12,

1992, the grand jury returned a single count indictment charging

Smith with illegally returning to the United States after

deportation and having been convicted of an aggravated felony in

violation of 8 U.S.C. 1326(a) and (b)(2). On January 19, 1993,

Smith moved to dismiss the indictment, maintaining that the

deportation proceeding underlying his deportation was

fundamentally unfair and that he was functionally deprived of

judicial review and due process. On January 21, 1993, the

district court held a hearing with respect to Smith's motion to

dismiss, and then denied the motion. On February 1, 1993, Smith

entered a conditional plea of guilty, and preserved his right to

seek review of the denial of his motion to dismiss the

indictment.

At the sentencing hearing on April 8, 1993, Smith moved

for a downward departure from the applicable sentencing range.

Smith argued that the government engaged in actions that

mitigated his conduct when the INS gave him Form I-294 at the

time of his deportation, which incorrectly stated the penalty he

would face if he returned to the United States. Smith also

submitted an affidavit stating that he relied on Form I-294 when

he decided to return to the United States. The district court

denied Smith's motion for a downward departure, indicating that

it would be antithetical to the policy behind the Sentencing

Reform Act, which is to deter people from committing crimes, to

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grant his motion, given that the facts indicated Smith had

knowingly committed a felony. The district court then sentenced

Smith to 70 months in prison.

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II. THE MOTION TO DISMISS THE INDICTMENT

Smith claims that he was denied his right to counsel at

the September 27, 1991 deportation hearing. Specifically, Smith

claims that the immigration judge erred at his deportation

hearing either by compelling him to go forward unrepresented or

by not explicitly asking him whether he wanted representation at

the deportation hearing. Therefore, Smith seeks to attack

collaterally the original order of deportation, arguing that it

cannot properly serve as the basis for his indictment under 8

U.S.C. 1326.1

To provide a basis to attack a deportation order

collaterally in a subsequent criminal prosecution, a defendant

must show that any error committed with respect to the

1 8 U.S.C. 1326 (Supp. 1993) provides in pertinent part:

(a) Subject to subsection (b) of this
section, any alien who --

(1) has been arrested and deported or
excluded and deported, and thereafter
(2) 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.

(b) Notwithstanding subsection (a) of this
section, in the case of any alien described
in such subsection --
. . .

(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.

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deportation hearing violated his due process rights, and that

this error was "'so fundamental' that it 'effectively

[eliminated] the right of the alien to obtain judicial review'".

United States v. Vieira-Candelario, 6 F.3d 12, 15 (1st Cir. 1993)

(quoting United States v. Mendoza-L pez, 481 U.S. 828, 837-39 &

n.17 (1987)). "'[W]here a determination made in an

administrative proceeding is to play a critical role in the

subsequent imposition of a criminal sanction, there must be some

meaningful review of the administrative proceeding.'" Vieira-

Candelario, 6 F.3d at 15 (quoting Mendoza-L pez, 481 U.S. at 837-

38).

The First Circuit has recently considered a case

analogous to the present situation, and its holding controls our

decision here. In Vieira-Candelario, the immigration judge

apparently erred in ruling that the defendant was not eligible

for a waiver pursuant to 212(c) of the Immigration and

Naturalization Act, 8 U.S.C. 1182(c). 6 F.3d at 15. The

immigration judge advised the defendant regarding his right to

appeal. Id. at 13. The day after the hearing, the defendant

did, in fact, file a notice of appeal in which he challenged the

immigration judge's ruling. Id. The issue was never reached,

however, because the defendant withdrew his appeal and was

deported shortly after doing so. Id. INS agents subsequently

found Vieira in Providence, Rhode Island, and charged him with

violating 8 U.S.C. 1326. Id. Vieira moved to quash the

indictment and to dismiss the indictment by collaterally

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attacking the deportation order, arguing that it could not

properly serve as the basis for his indictment under 8 U.S.C.

1326. Id. In rejecting the defendant's collateral attack on the

deportation order, this Court observed:

Here, in contrast to the situation in
Mendoza-L pez, the immigration judge's

putatively erroneous decision did not
"effectively" rob Vieira of his right to
review. Vieira filed a notice of appeal.
He later deliberately withdrew the
appeal. He was represented by counsel
throughout. As Vieira voluntarily
abandoned his right to obtain review of
the deportation order, we see no way to
hold that he was deprived of meaningful
review of the administrative proceeding
contrary to the due process clause.

Id. at 15.

Smith claims that the immigration judge erred at the

deportation hearing by denying him his right to counsel. At the

conclusion of the deportation hearing, however, the immigration

judge explained the appeal process to Smith, which required that

a notice of appeal be filed with the Board of Immigration

Appeals. Smith then availed himself of his right to appeal,

albeit not on the ground that he was deprived of his right to

counsel. The appeal process then ended only because Smith, and

his attorney, Mr. Carrigan, sent letters to the INS deliberately

withdrawing the appeal.

While this case does differ from Vieira-Candelario in

that Smith claims that he was deprived of his right to counsel at

the deportation hearing, this difference does not alter the fact

that Smith was afforded the opportunity to appeal from the

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immigration judge's decision. The fact that Smith filed an

appeal demonstrates that he understood his appellate rights.

Moreover, Smith consulted with his attorney regarding the appeal

process, as evidenced by the fact that Attorney Carrigan, as well

as Smith, sent a letter to the INS withdrawing the appeal which

Smith did file. Additionally, while Smith did not appeal on the

ground that he had been deprived of counsel, he could have done

so. Because nothing that happened in Smith's deportation

proceeding affected his ability to appeal, his collateral attack

on the deportation hearing must fail.

III. SENTENCING

Smith challenges the district court's refusal to grant

him a downward departure from the sentencing range set forth in

the Sentencing Guidelines. Smith argues that by virtue of the

form the INS gave him at the time of his deportation, INS Form I-

294, the government erroneously informed him of the consequences

of returning unlawfully to the country. The INS told Smith that

the maximum penalty he would face was two years imprisonment,

instead of the correct penalty of 15 years. Smith submitted an

affidavit stating that he relied upon this form 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 to the

United States. Therefore, Smith contends that this constituted a

mitigating circumstance that the Sentencing Commission had not

taken into account when it formulated the guidelines, and it

warranted a downward departure. Smith argues that the district

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court improperly denied his motion by concluding that it lacked

the legal authority to consider the INS notice as a basis for

departure under the Sentencing Guidelines.

The government argues that the district court

understood that it had the power to consider whether the INS

notice provided a ground for departure from the Sentencing

Guidelines. But, the government contends, the district court

simply refused to exercise its discretion to depart downward.

Ordinarily, a district court's refusal to exercise its

discretion and depart downward from the sentencing guidelines is

not appealable. United States v. Lombardi, 5 F.3d 568, 571 (1st

Cir. 1993); United States v. Rushby, 936 F.2d 41, 42 (1st Cir.

1991). Appellate jurisdiction may attach, however, where the

district court's decision not to depart is based on the court's

view that it lacks the legal authority to consider a departure.

United States v. Romolo, 937 F.2d 20, 22-23 (1st Cir. 1991). The

record can be fairly read to support the conclusion that the

district court believed that it lacked the legal authority to

depart under the Guidelines on the basis of the INS notice.2

Thus, we review the district court's decision to determine

whether or not, it did, in fact, possess the power to depart

downward based on this circumstance.

Plenary review is appropriate where the question is

2 If we were to conclude that the district court understood that
it had the power to depart downward, but chose not to do so, we
would not have jurisdiction to consider Smith's appeal, and the
district court's sentence would stand.

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"whether or not the allegedly special circumstances (i.e., the

reasons for departure) are of the 'kind' that the Guidelines, in

principle, permit the sentencing court to consider at all."

United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993).

Under the Sentencing Reform Act, a court may depart

downward if it finds that there was a mitigating circumstance "of

a kind" which the Sentencing Commission did not "adequately

take[] into consideration . . . in formulating the guidelines

that should result in a sentence different from that described."

18 U.S.C. 3553(b); U.S.S.G. 5K2.0, p.s.; Rivera, 994 F.2d at

946-47. If the court finds that the sentencing commission did

not adequately take a circumstance into consideration, it must

then determine if the circumstance is of a kind which should

justify a departure. To make this determination, a court should

look to the sentencing system's purposes and the guidelines

themselves. See Rivera, 994 F.2d at 947, 949. 18 U.S.C. 3553

specifies the purposes which the sentencing system is attempting

to achieve, and provides that in determining the particular

sentence to be imposed, a court should consider, among other

factors, the need for the sentence imposed "to promote respect

for the law," and "to afford adequate deterrence to criminal

conduct." 18 U.S.C. 3553(a)(2)(A) & (B).

We do not believe that when the Sentencing Commission

formulated its guidelines, it considered an unusual situation

like the present one. Despite this lack of prior consideration,

however, this situation does not present the kind of circumstance

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a sentencing court should consider to support a downward

departure.

Smith contends that because he relied on an INS notice

that misstated the criminal penalty he would face if he illegally

returned to the United States, he should be granted a downward

departure. Smith's contention runs counter to a primary purpose

of the sentencing system, which is to deter criminal conduct.

The Sentencing Guidelines were established, in part, to create

penalties which were high enough to discourage people from

committing a particular crime. Smith implicitly admits that he

intentionally committed a felony. The sentencing court cannot

countenance Smith's purposeful decision to engage in felonious

conduct, and grant him the benefit of a downward departure,

because Smith understood the penalty he would face to be

relatively minor. Rather, the sentencing court was required to

sentence Smith within the applicable sentencing range, so that

Smith and others would be deterred from illegally reentering the

country in the future. Therefore, the district court's finding

that this was not the kind of circumstance that should justify a

downward departure was proper, and its decision is affirmed.

Affirmed.

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