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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2130
UNITED STATES,
Appellee,
v.
RADHAME TRONCOSO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
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Before
Selya and Boudin, Circuit Judges,
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and Carter,* District Judge.
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Gordon R. Blakeney, Jr., by Appointment of the Court, for
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appellant.
Jean B. Weld, Assistant United States Attorney, with whom Paul M.
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Gagnon, United States Attorney, was on brief for appellee.
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May 18, 1994
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*Of the District of Maine, sitting by designation.
CARTER, Chief District Judge.*
Radhame Troncoso appeals his conviction and
sentence for illegal reentry into the United States after
having been deported subsequent to conviction for an
aggravated felony, 8 U.S.C. 1326(b)(2). We affirm.
I. FACTUAL BACKGROUND
I. FACTUAL BACKGROUND
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Appellant, Radhame Troncoso, from the Dominican
Republic, has been convicted several times of drug
trafficking and other related offenses in the United States.
The conviction most relevant to this appeal took place on
January 25, 1988, when Appellant was convicted in a
Massachusetts state court on charges including possession of
cocaine with intent to distribute. Appellant served his
prison sentence and was then turned over to officials of the
Immigration and Naturalization Service ("I.N.S.") who
deported him on several grounds, including conviction of a
drug trafficking offense. The deportation occurred on
October 26, 1988. At that time, the I.N.S. warned Appellant
that if he returned to the U.S. within five years, he would
be guilty of a felony and subject to up to two years in
prison as provided for by section 1326, before that section
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was amended by the Anti-Drug Abuse Act of 1988. 8 U.S.C.
1326.1
Appellant did return undetected to the United
States at some point and was convicted in New York on August
29, 1991, on drug-related charges but was not deported
following his incarceration.2 He was later arrested in New
Hampshire on October 30, 1992, convicted of selling cocaine,
and received a suspended sentence in April of 1993. He was
also charged with violating section 1326(b)(2) based on his
earlier deportation in connection with the January 25, 1988,
conviction. Section 1326(b)(2), which had been amended
since Appellant's conviction and deportation, enhanced the
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*Of the District of Maine, sitting by designation.
1Prior to the enactment of the Anti-Drug Abuse Act of 1988
("ADAA"), section 1326 provided for a maximum two-year term
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of imprisonment for any alien who had been previously
arrested and deported and was thereafter convicted of
reentry, attempted
reentry, or being found in the United States without
permission. 8 U.S.C. 1326 (1987). When the ADAA was
enacted on November 18, 1988, section 1326 was amended to
provide for a maximum fifteen-year term of imprisonment for
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any alien who was convicted of reentry, attempted reentry,
or being found in the U.S. after having been previously
arrested and deported subsequent to a conviction for
commission of an aggravated felony. 8 U.S.C.
1326(b)(2)(Supp. 1993).
2The Government argues that Appellant was not deported
following the New York conviction because he used an alias
which prevented I.N.S. agents from identifying him.
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maximum penalty for unlawful reentry from two to fifteen
years for aliens who had been deported subsequent to
conviction for committing an aggravated felony. See 8
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U.S.C. 1326(b)(2)(Supp. 1993). On August 30, 1993,
Appellant was convicted and sentenced to 60 months in
prison.
II. DISCUSSION
II. DISCUSSION
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Appellant challenges the district court's denial
of his motion to dismiss the indictment, arguing that
Congress did not intend for section 1326(b)(2), as amended
by the Anti-Drug Abuse Act of 1988, to apply retroactively
to persons who were convicted and deported prior to the
Act's effective date. 8 U.S.C. 1326(b)(2). Appellant
argues, in the alternative, that applying section 1326(b)(2)
retroactively to his case violates the ex post facto Clause
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of the United States Constitution. U.S. Const. art. I, 9,
cl. 3. He also argues that the doctrines of equitable
estoppel and estoppel by entrapment bar the court, as a
matter of law, from sentencing him beyond a two-year term of
imprisonment in light of the representations made by I.N.S.
agents at the time of his deportation. Lastly, he argues
that the district court erred by treating his New Hampshire
state conviction as a "prior sentence," rather than as part
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of the instant offense of violating section 1326(b)(2),
pursuant to section 4A1.2(a)(1) of the Sentencing
Guidelines. U.S.S.G. 4A1.2(a)(1).
A. Statutory Construction
A. Statutory Construction
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Appellant's first argument focuses on
Congressional intent with respect to the retroactive
application of section 1326(b). 8 U.S.C. 1326(b).3
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3Section 1326 provides in pertinent part that:
(a) Subject to subsection (b),
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,
t h e U n i t e d
States . . .
shall be fined under Title 18,
United States Code, or
imprisoned not more than 2
years or both.
(b) Notwithstanding subsection
(a), in the case of any alien
described in such subsection
--
. .
. .
.
( 2 ) w h o s e
deportation was
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Section 1326(b) was added to the Immigration and Nationality
Act ("INA") on November 18, 1988, when Congress enacted the
Anti-Drug Abuse Act of 1988 ("ADAA"). See Pub. L. 100-690,
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Title VII, Subtitle J, 7345(a), 102 Stat. 4471 (codified
as amended at 8 U.S.C. 1326(b)(1988)). Apart from the
statutory text, the Act provided that the amendment adding
section 1326(b) "shall apply to any alien who enters,
attempts to enter, or is found in, the United States on or
after the date of the enactment of this Act." The ADAA also
added a provision to the INA defining the new term of
"aggravated felony" to include murder, illicit trafficking
in any controlled substance, money laundering, and crimes of
violence carrying at least 5 years of imprisonment. See
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Pub. L. 100-690, Title VII, Subtitle J, 7342, 102 Stat.
4469 (codified as amended at 8 U.S.C. 1101(a)(43)(1988)).
The Act did not include a section limiting the temporal
applicability of the "aggravated felony" definition.
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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.
8 U.S.C. 1326 (Supp. 1993).
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The parties do not dispute that Appellant's drug
conviction, which precipitated his deportation on October
26, 1988, falls into the definition of "aggravated felony"
in section 1101(a)(43). 8 U.S.C. 1101(a)(43). The issue
in dispute is whether Congress intended for section
1326(b)(2), as it incorporates section 1101(a)(43), to apply
retroactively to an alien who was convicted and deported
prior to the ADAA amendments. In Matter of A-A-, Interim
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Dec. 3176 (BIA 1992), the Board of Immigration Appeals
interpreted the plain language of the amended provisions,
along with the applicability section accompanying section
1326(b), and concluded that the enhanced fifteen-year
criminal penalty is:
applicable to ``any alien who
enters, attempts to enter or
is found in, the United States
on or after the date of
enactment of [the November 18,
1988] Act.' . . . For an
alien reentering the United
States on November 18, 1988,
to be subject to these
criminal penalties, the alien
would need to have suffered a
conviction and deportation
before November 18, 1988. It
would be virtually impossible
for an alien convicted of an
aggravated felony to reenter
or be found in the United
States on the date of
enactment unless the
definition of aggravated
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felony included convictions
occurring before that date.
This Court adopted the BIA's reasoning in Barreiro v.
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I.N.S., 989 F.2d 62 (1st Cir. 1993)(upholding the
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retroactive application of the aggravated felony definition
as it was incorporated into a "waiver of deportation"
provision, serving to bar a seven-year domiciliate from
seeking a waiver from deportation pursuant to section 212(c)
of the INA, 8 U.S.C. 1182(c)(Supp. 1992)). In a case very
similar to the facts at hand, U.S. v. Forbes, 16 F.3d 1294
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(1st Cir. 1994), this Court upheld a conviction under
section 1326(b)(2) based on aggravated felony convictions
that occurred prior to the effective date of the ADAA
amendments. In oral argument, Appellant was unable to point
to any case law in support of his position that section
1326(b)(2) was not intended to be applied retroactively.
Given the law of this circuit and the plain meaning of the
provision, we affirm the district court's application of
section 1326(b)(2) to Appellant's conviction.
B. Alleged Ex Post Facto Violation
B. Alleged Ex Post Facto Violation
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Appellant argues that even if Congress intended
for section 1326(b)(2) to be applied retroactively, the
effect of retroactive application in his situation results
in a violation of the ex post facto provision of the
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Constitution. See U.S. Const. art. I, 9, cl. 3 (barring
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the retrospective application of laws that materially
disadvantage a defendant). Appellant argues that the
Government failed to present evidence ruling out the
possibility that he returned to the United States subsequent
to his October, 1988, deportation but prior to November 18,
1988, when the ADAA amendments went into effect. He argues
that an ex post facto violation has occurred with respect to
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him and the class of convicted-and-deported aliens who were
in the country on the date of enactment because "such a
person's status is changed, and liability thus increased, by
an act, of the legislature, of which such persons had no
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notice, nor opportunity to avoid, even given such notice."
Appellant's Brief at 27.
In Forbes, this Court held that the inclusion of a
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defendant's prior drug convictions to trigger the enhanced
criminal penalties of section 1326(b)(2) did not violate the
ex post facto Clause, where the convictions had been
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obtained prior to the ADAA amendments. Forbes, 16 F.3d at
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1301-02. Citing Gryger v. Burke, 334 U.S. 728 (1948), this
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Court reasoned that the enhanced fifteen-year penalty
applies to the crime of unlawful reentry and does not
increase the punishment for crimes committed prior to the
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ADAA amendments. Id. at 1302. Appellant distinguishes his
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situation by pointing out that the appellant in Forbes
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committed the offense of unlawful reentry after the amended
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section went into effect, whereas Appellant may have
committed the offense of unlawful reentry prior to the ADAA
amendments. But section 1326(a)(2) defines the criminal
conduct more expansively to include entry, attempted
reentry, or being found in the United States without
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permission. Appellant was indicted and convicted of "being
found in the United States" in violation of section
1326(b)(2). His offense occurred on October 30, 1992, well
after the ADAA amendments and not on the date of his
undetected reentry. Hence, Appellant fails to satisfy a
critical element for establishing that a criminal law has ex
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post facto effect; he fails to demonstrate that the law is
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"retrospective, that is, it must apply to events occurring
before its enactment." Weaver v. Graham, 450 U.S. 24, 29
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(1981); see also U.S. v. Alvarez-Quintero, 788 F. Supp. 132
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(D.R.I. 1992)(finding no ex post facto violation where court
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applied an amended Sentencing Guideline increasing the
penalty for reentry of an alien deported for an aggravated
felony, even when reentry predated the amended Guideline,
because the section 1326(b)(2) offense occurred on the date
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the alien was found in the United States and not on the date
of the unlawful reentry).
C. Sentencing: Entrapment by Estoppel and Equitable
C. Sentencing: Entrapment by Estoppel and Equitable
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Estoppel
Estoppel
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Appellant argues that the court should be estopped
from sentencing him beyond two years based on
representations made to him by the I.N.S. upon his
deportation, indicating that unlawful reentry could subject
him to a maximum two-year prison term. The Court need not
discuss this argument in detail because Appellant fails to
satisfy threshold elements of the two estoppel doctrines.
First, with respect to "entrapment by estoppel," Appellant
cannot show that a government official erroneously advised
him that the particular act for which he was convicted was
actually legal at the time it was committed. United States
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v. Smith, 940 F.2d 710, 714 (1st Cir. 1991). Second, with
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respect to equitable estoppel, Appellant cannot show that he
relied upon a material misrepresentation, because the I.N.S.
informed Appellant that he would face up to two years for
unlawful reentry which was an accurate rendition of the law
as it existed on the date of Appellant's deportation. See
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Heckler v. Community Health Services, Inc., 467 U.S. 51, 59
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(1984); K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907,
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912 (1st Cir. 1989)(defining elements of equitable estoppel
to include a material misrepresentation of a party who had
reason to know of its falsity and reasonable reliance upon
the misrepresentation to the charging party's disadvantage).
Further, this Court has recently held that even where the
I.N.S. erroneously informed a deportee of the penalty faced
upon reentry, such an error is not a mitigating factor
justifying a downward departure under the Sentencing
Guidelines. U.S. v. Smith, 14 F.3d 662 (1st Cir.
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1994)(holding that, even where defendant was misinformed as
to the consequences of unlawful reentry and stated that he
returned in reliance on the misrepresentation, such a
circumstance did not justify a downward departure where
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defendant made a purposeful decision to engage in felonious
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conduct). Hence, Appellant's arguments regarding the two
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estoppel doctrines are unavailing.
D. Sentencing: Alleged Error in Computing Criminal History
D. Sentencing: Alleged Error in Computing Criminal History
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Appellant argues that the district court erred in
determining that his New Hampshire conviction for selling
cocaine on October 30, 1992, was a "prior sentence"
resulting in an additional two points being added to his
criminal history computation pursuant to section 4A1.2(a)(1)
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of the Sentencing Guidelines. U.S.S.G. 4A1.2(a)(1).4
Appellant argues that his conduct in violation of section
1326(b)(2) came to light only through his arrest for selling
cocaine. Since "he was found in this country in the process
of committing that [state] offense", Appellant argues that
the offense conduct of selling cocaine should be viewed as
part of the instant offense and not counted as a prior
sentence. See Trial Transcript (Aug. 30, 1993) at 29-30.
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The commentary to section 4A1.2 defines "prior
sentence" as "a sentence imposed prior to sentencing on the
instant offense, other than a sentence for conduct that is
part of the instant offense." U.S.S.G. 4A1.2, comment.
(n.1). Here, Appellant's state court sentence was imposed
in April of 1993, prior to his August 30, 1993, sentencing
on the instant offense. Whether his conduct in selling
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4Appellant's counsel, in oral argument, acknowledged that
his brief to this Court wrongly used the term "related
cases," referred to in section 4A1.2(a)(2) of the Sentencing
Guidelines, to refer to the relationship between Appellant's
prior New Hampshire sentence and the instant offense of
violating section 1326(b)(2). 8 U.S.C. 1326(b)(2).
Counsel acknowledged that "related cases," as used in the
Guidelines, refers to the relationship between prior
sentences and whether prior sentences should be counted as
one sentence in a defendant's criminal history and does not
govern a court's assessment of whether a prior sentence
should be viewed as part of the instant offense. See also
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U.S. v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992); U.S. v.
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Walling, 936 F.2d 469, 471 (10th Cir. 1991).
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cocaine qualifies as conduct that was part of the instant
offense presents an issue of first impression in this
circuit. Other circuit courts of appeal that have
considered the issue have decided the appropriate inquiry is
whether the "prior sentence" and the instant offense involve
conduct that is severable into two distinct offenses. See,
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e.g., U.S. v. Beddow, 957 F.2d 1330, 1338-39 (6th
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Cir. 1992)(holding that defendant's state conviction for
carrying a concealed weapon was not part of the instant
federal money laundering offense, even though the concealed
weapon was found at the time of defendant's arrest for
attempting to carry out money laundering scheme); U.S. v.
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Banashefski, 928 F.2d 349 (10th Cir. 1991)(holding that
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defendant's state court conviction for possessing a stolen
car was severable from federal offense of being a felon in
possession of a firearm, even though firearm was found in
car's trunk at time of defendant's arrest for state stolen
vehicle charge).
Whether or not the "prior sentence" and the
instant offense are severable entails a fact-specific
inquiry by the district court. To the extent that factual
issues are involved, the district court's determinations are
reviewed under the clearly erroneous standard, and "due
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deference" is afforded to the "application of the guidelines
to the facts." 18 U.S.C. 3742(e). Here, the district
court based its findings on the Government's arguments that
the only relation between Appellant's drug selling conduct
and his conduct in violating section 1326(b)(2) is that the
former violation set in motion a chain of events whereby
federal agents were able to trace Appellant's fingerprints
to those of Radhame Troncoso and the I.N.S. then retrieved
his file, which led to the determination that Appellant was
in the country in violation of 1326(b)(2). Trial Transcript
at 30-31. The Government argued there was no other
connection between the conduct involved in the drug offense
and the 1326(b)(2) violation especially where the state
prosecutor and the United States Attorney had to prove
totally different elements with respect to each offense.
Id. Based on these arguments, the district court's
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determination that Appellant's sentence for selling cocaine
constituted a severable offense, and a "prior sentence" for
the purpose of computing Appellant's criminal history
category, is not erroneous.
The judgment of the district court is AFFIRMED.
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Document Info
Docket Number： 93-2130
Filed Date： 5/18/1994
Precedential Status： Precedential
Modified Date： 9/21/2015