United States Court of Appeals
For the First Circuit
Nos. 00-2473
00-2474
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID FORSYTH JOHNSTONE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Schwarzer*, District Judge.
Marie E. Hansen, with whom N. Laurence Willey, Jr., and
Ferris, Dearborn & Willey were on brief, for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Jay
P. McCloskey, United States Attorney, was on brief, for
appellee.
June 5, 2001
______________________
*Of the Northern District of California, sitting by designation.
BOWNES, Senior Circuit Judge. Defendant-appellant
David Forsyth Johnstone appeals from his conviction and sentence
for unlawful reentry into the United States following
deportation. Johnstone was deported after his state-court
conviction for forgery in Colorado, which the district court
deemed an aggravated felony for purposes of enhancing his
federal sentence. He now contends that he received inadequate
assistance of counsel in the Colorado proceedings and that the
forgery should not be considered an aggravated felony. We
affirm.
I. BACKGROUND
In 1998, Johnstone, a British subject, stole a credit
card and used it to pay for a Colorado rafting trip for himself
and two friends. Johnstone was charged in state court with
forgery, a Class 5 felony under Colorado law; criminal
impersonation, a Class 6 felony; and unauthorized use of a
financial transaction device. He pled guilty to the forgery
charge in exchange for the state’s dismissal of the unauthorized
use charge. Johnstone received a sentence of one year in prison
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on the forgery charge.1 Following his guilty plea, Johnstone was
deported.
He later reentered the United States without having
applied to do so. On March 13, 2000, a detective with the
Waterville, Maine Police Department contacted the United States
Immigration and Naturalization Service and reported that
Johnstone was suspected of fraud in Waterville. Johnstone
falsely claimed in loan applications to a Waterville bank and a
credit union that he received a monthly pension from the United
States Marine Corps. He also used false Social Security numbers
when he opened accounts at three Waterville financial
institutions.
Johnstone was charged in a single-count indictment and
a two-count information with reentering the United States after
having been deported, 8 U.S.C. § 1326(b)(2); providing false
statements in loan applications to a credit union and a bank,
18 U.S.C. § 1014; and with use of false Social Security numbers,
42 U.S.C. § 408(a)(7)(B).
On June 20, 2000, Johnstone first appeared before the
district court for entry of pleas of guilty to the indictment
1
The forgery sentence apparently ran consecutively with a
one-year sentence imposed on the criminal impersonation charge,
resulting in a sentence totaling two years. Only the forgery
sentence is relevant to this appeal, since it is the basis for
the aggravated felony sentence enhancement.
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and the information. The court explained to Johnstone the
rights he would give up upon his waiver of indictment and pleas
of guilty. The court accepted the waiver of indictment, and
Johnstone entered his guilty pleas. When he stated that he was
unaware that the penalties for the three offenses could be
imposed consecutively, the court suspended the proceedings.
On July 10, 2000, the plea hearing resumed. Again, the
court explained to Johnstone the rights he would waive. This
time, Johnstone stated that he understood that he was exposed to
maximum terms of imprisonment of twenty years on the immigration
charge and thirty years on the false statements charge, which
could be imposed consecutively.
On October 25, 2000, the court conducted a presentence
conference. Johnstone contended that his Colorado counsel
failed to advise him of his right to consular notification and
of the effect that the guilty plea would have on his alien
status, hence providing ineffective assistance. He stated that
he had obtained new counsel in Colorado to attack his state-
court conviction, and moved to withdraw his plea for the limited
purpose of obtaining post-conviction review.
The district court stated that Johnstone was convicted
of an aggravated felony at the time of his deportation. It
concluded that it was irrelevant whether the Colorado conviction
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was later vacated. Additionally, the court determined that
Johnstone’s Colorado counsel’s alleged failures did not amount
to ineffective assistance of counsel. Thus, nothing prevented
the court from relying on the Colorado conviction to support the
enhancement of Johnstone’s federal sentence for illegally
reentering the country. Accordingly, the court denied his
motion for a partial withdrawal of his guilty plea. It offered
him the opportunity to file a motion to completely withdraw his
plea, which Johnstone did not do.
The court also found that the Supreme Court’s decision
in Apprendi v. New Jersey, 530 U.S. 466 (2000), did not help
Johnstone. It held that Apprendi did not apply to this case
because the application of the sentencing enhancement under
section 1326(b)(2) did not increase his maximum statutory
penalty beyond that contemplated by his plea agreement and
guilty plea.
On November 7, 2000, the district court held a
sentencing hearing. Under U.S.S.G. § 2L1.2(a), the base offense
level for illegally reentering the United States was eight.
Sixteen levels were added pursuant to section 2L1.2(b)(1)(A)
because Johnstone had been deported after conviction for an
aggravated felony, i.e. the Colorado forgery conviction. Credit
for acceptance of responsibility reduced the total offense level
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to twenty-one. The court calculated eight criminal history
points, which resulted in a guideline sentencing range of fifty-
seven to seventy-one months.2
The court considered each of Johnstone’s asserted bases
for a downward departure from the guideline sentencing range.3
The court found no justification for departing from the
guideline range, noting that “nothing . . . takes this case out
of the heartland.”
The government recommended a downward departure under
U.S.S.G. § 5K1.1, for Johnstone’s cooperation with the
prosecution, and recommended a sentence of fifty-one months in
prison. The court allowed the government’s motion and imposed
a sentence of forty-five months' imprisonment on the reentry
charge. Concurrent sentences of nine months were imposed for
the false statement charge and for the charge of using false
2
The false statement offenses were grouped under U.S.S.G.
§ 3D1.2(b) with a total offense level of seven. The offense
level of seven and the previously calculated Criminal History
Category of IV yielded a guideline sentencing range of eight to
fourteen months.
3
Specifically, Johnstone asserted that the facilities in
federal prison were inadequate to treat his medical condition;
that the aggravated felony enhancement for the Colorado forgery
overstated the seriousness of his criminal history; and that he
had reentered the country to assist in the support of his wife,
a college student in Maine.
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Social Security numbers. The court further ordered that
Johnstone pay $2,006 in restitution to Key Bank.
II. DISCUSSION
Johnstone first argues that the district court erred
as a matter of law in increasing his sentence on the ground that
the Colorado conviction constituted an aggravated felony. We
review this contention de novo. United States v. Luna-Diaz, 222
F.3d 1, 3 (1st Cir. 2000).
For the crime of reentering the United States following
deportation, 8 U.S.C. § 1326(b)(2), 4 the sentencing guidelines
increase the base offense level from eight to twenty-four if the
defendant was removed or deported after conviction of an
4Section 1326 reads, in pertinent part, as follows:
. . . any alien who–-
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an
order of exclusion, deportation, or removal is
out-standing, and thereafter
(2) enters, attempts to enter, or is at any time found
in, the United States, unless . . . the Attorney
General has expressly consented to such alien’s
reapplying for admission . . . shall be fined under
Title 18, or imprisoned not more than 2 years, or
both.
Subsection(b)(2) increases the maximum statutory penalty from
two to twenty years for any alien described in subsection (a)
“whose removal was subsequent to a conviction for commission of
an aggravated felony . . . .”
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“aggravated felony.” U.S.S.G. § 2L1.2(b)(1)(A). The commentary
to this section defines "aggravated felony" by reference to 8
U.S.C. § 1101(a)(43), id., cmt. n.1, which includes “an offense
relating to . . . forgery . . . for which the term of
imprisonment is at least one year . . . .” 8 U.S.C. §
1101(a)(43)(R).5
Johnstone was deported following a 1998 conviction for
forgery, which Colorado law categorizes as a Class 5 felony and
which carries a maximum prison term of three years. Johnstone’s
actual sentence was one year. There is simply no question that
the Colorado conviction was an aggravated felony within the
plain language of section 1101(a)(43)(R). Therefore, the
district court did not err when it increased Johnstone’s base
offense level to twenty-four under U.S.S.G. § 2L1.2(b)(1)(A).
Second, Johnstone renews his contention that his
counsel did not advise him of the Vienna Convention or the
possibility of deportation, and that therefore he received
ineffective assistance of counsel. He has challenged his
Colorado conviction on these grounds. At the very least,
Johnstone urges, this court should vacate his sentence until
5Johnstone also contends that the facts on which his
conviction was based amount only to petty larceny at most, not
forgery. For the reasons explained infra, we cannot
collaterally review the Colorado court's conviction.
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post-conviction review is complete. We review the legal
determination of the guidelines' meaning and scope de novo.
Luna-Diaz, 222 F.3d at 3.
Our holding in Luna-Diaz, id. at 4, forecloses this
collateral attack on the state court conviction. There, we held
that the plain language of 8 U.S.C. § 1326(b) and U.S.S.G.
§ 2L1.2(b) required the imposition of the sixteen-level
enhancement based on even a vacated conviction of an aggravated
felony. As long as the removal occurred after the conviction,
a conviction that is later vacated can serve as an “aggravated
felony” under 8 U.S.C. § 1326(b)(2). "By all indications, the
relevant time under the statute is the moment of removal, not of
sentencing." Id.
Accordingly, the future status of Johnstone's forgery
conviction is irrelevant to the guideline enhancement. Even if
Johnstone received ineffective assistance of counsel in Colorado
and his forgery conviction is vacated, his federal sentence is
unaffected. We conclude that the district court did not err in
denying Johnstone’s motion to withdraw his guilty plea and
continue sentencing pending resolution of his post-conviction
challenge to his Colorado forgery conviction.
Third, Johnstone argues that the district court erred
in not submitting the sentencing enhancement to a jury. He
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contends that under Apprendi, he is entitled to a jury
determination of whether he was deported following an aggravated
felony conviction. See Apprendi, 530 U.S. at 490 (jury must
determine beyond a reasonable doubt facts that "increase the
prescribed range of penalties to which a criminal defendant is
exposed").
No Apprendi violation occurs, however, when the
district court sentences a defendant below the statutory
maximum, even if a fact determined by the court under a
preponderance standard lengthens the sentence imposed. United
States v. Robinson, 241 F.3d 115, 119 (1st Cir. 2001) (court's
findings under preponderance standard concerning drug amount,
which increased appellant's sentence, did not violate Apprendi
because sentence imposed was less than default statutory
maximum). Here, the applicable statute set forth a maximum
sentence of twenty years for the unlawful reentry charge. 8
U.S.C. § 1326(b)(2). The plea agreement and hearings make clear
that Johnstone fully understood that he faced that maximum
penalty. The actual sentence imposed by the district court,
even with the enhancement, was forty-five months, well under
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that maximum. Accordingly, the district court correctly held
that Apprendi does not apply. See Robinson, 241 F.3d at 118-19.6
Finally, Johnstone contends that the district court
erred in declining to award a downward departure on the grounds
of his medical condition, the purported overstatement of the
seriousness of his criminal history, and/or his motive in
returning to the United States. The court of appeals has no
jurisdiction, however, to review a district court’s decision not
to depart downward unless the district court misunderstood its
authority to do so. United States v. Orlando-Figueroa, 229 F.3d
33, 49 (1st Cir. 2000). The record does not reflect any such
misunderstanding on the part of the district court. Rather, the
court stated that each ground was “properly within [the court’s]
authority to consider as a basis for downward departure,” and
that whether to depart would be “a matter of [the court’s] own
judgment and discretion.” Accordingly, we may not review the
6 Moreover, by its express terms, Apprendi concerns only
sentencing facts "[o]ther than the fact of a prior conviction.
. .” 530 U.S. at 490. Here, Johnstone’s maximum sentence for
his offense increased to twenty years solely because of his
deportation following his prior conviction in Colorado.
Therefore, although we need not decide this issue today, we
doubt that Apprendi applies to Johnstone’s case for the
additional reason that the increase in his maximum sentence was
due to a prior conviction. See United States v. Pacheco-Zepeda,
234 F.3d 411, 415 (9th Cir. 2000).
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district court’s rejection of Johnstone's requests for downward
departures.7
The conviction and sentence are affirmed.
7 In addition, Johnstone makes two more cursory arguments,
neither of which have merit. First, he contends that the felony
conviction is an element of a section 1326 offense, and thus
should have been separately set forth in the indictment and
submitted to the jury. The Supreme Court has held, however,
that section 1326(b)(2) is merely a sentencing factor, not a
separate criminal offense. Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Second, Johnstone argues that the
sentencing enhancement violates the Eighth Amendment to the
United States Constitution; because he apparently did not make
this argument below, we review only for plain error. Under that
standard, we conclude that Johnstone has not shown the kind of
"gross disproportionality" between the gravity of the criminal
conduct and the severity of his sentence that an Eighth
Amendment challenge requires. United States v. Cardoza, 129
F.3d 6, 18 (1st Cir. 1997). Other courts have rejected such
challenges of much longer sentences under section 1326(b). See,
e.g., United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134
(5th Cir. 1993) (100-month sentence); United States v. Cupa-
Guillen, 34 F.3d 860, 865 (9th Cir. 1994) (100-month sentence).
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