United States v. Wade Anthony Drummond ( 2001 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 08 2001
________________________ THOMAS K. KAHN
CLERK
No. 00-10768
Non-Argument Calendar
________________________
D. C. Docket No. 99-CR-00568-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WADE ANTHONY DRUMMOND,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 8, 2001)
Before EDMONDSON, HULL and FAY, Circuit Judges.
PER CURIAM:
Wade Anthony Drummond (“Drummond”) appeals a conviction and 77-month
sentence imposed for his attempt to re-enter the United States after deportation in
violation of 8 U.S.C. § 1326(a) and (b)(2). Drummond argues that the district court
erred when it denied his motion to dismiss the indictment on speedy trial grounds and
when it applied a 16-level sentencing enhancement based on the finding that
Drummond was previously convicted of an aggravated felony.
In considering the district court’s determination that Drummond’s speedy trial
rights were not violated, we review factual findings for clear error and conclusions of
law de novo. United States v. Taylor, 487 U.S. 326, 337 (1988). We review the
applicability of the U.S.S.G. § 2L1.2(b)(1)(A) aggravated felony enhancement de
novo. United States v. Fuentes-Barahona, 111 F.3d 651, 652 (9th Cir. 1997). Issues
of constitutional law are subject to plenary review. United States v. Lawson, 809 F.2d
1514, 1517 (11th Cir. 1987). Upon review of the record and the parties’ briefs, we
find no reversible error.
Drummond is a native and citizen of Jamaica who was deported from the
United States on September 24, 1998. On December 11, 1998, he attempted to re-
enter the United States by presenting a revoked resident alien card at the Miami
International Airport. He was detained by the Immigration and Naturalization Service
(“INS”) at that time and transported to the Krome Detention Center in Miami, Florida.
Almost two months later, on February 4, 1999, a criminal complaint was filed and a
warrant issued for Drummond’s arrest on charges of illegal re-entry into the country
after deportation. Drummond was then indicted on February 9, 1999, on a single
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charge of attempted re-entry into the United States following deportation, in violation
of 8 U.S.C. § 1326(a) and (b)(2).
Drummond filed a motion to dismiss the indictment, arguing that the United
States had violated his speedy trial rights under 18 U.S.C. § 3161, et seq., by not
indicting him within thirty days of his arrest and detention by INS officials. The
United States did not oppose the motion, and the district court dismissed the
indictment on August 3, 1999.1 The United States re-indicted Drummond on the
identical charge nine days later, and he filed a second motion to dismiss on speedy
trial grounds. The district court denied the motion, finding that his arrest by
immigration officials was an administrative or civil detention that did not implicate
the Speedy Trial Act.
After a bench trial, Drummond was convicted of violating 8 U.S.C. § 1326(a)
and (b)(2). At his sentencing, the district court imposed a 16-level enhancement on
Drummond’s offense level based on a finding that a prior conviction in New York
1
Although the Order dismissing the indictment against Drummond did not specifically
state whether the dismissal was with or without prejudice, it appears that the indictment was
dismissed based on the government’s agreement that it be dismissed without prejudice. The
Order of dismissal provided that the government had “no objection to the court granting the
motion without prejudice.” Moreover, the district court, in its subsequent Order denying
Drummond’s motion to dismiss the second indictment, stated that the factors outlined in 18
U.S.C. § 3162(a)(1) weighed in favor of a finding that the first indictment was dismissed without
prejudice. Drummond has not challenged this finding on appeal.
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state court for menacing qualified as an aggravated felony as defined in 8 U.S.C. §
1101(a)(43). Drummond appeals both the district court’s denial of his motion to
dismiss indictment on speedy trial grounds and the 16-level sentencing enhancement.
Drummond argues on appeal that the district court’s determination that his
detention at Krome was an “administrative hold” that did not trigger the running of
the speedy trial clock was contrary to the law. Under the Speedy Trial Act, 18 U.S.C.
§ 3161, et seq., federal authorities must indict an incarcerated individual within 30
days of his arrest in connection with the offenses specified in the indictment.2 More
than 30 days elapsed from the time Drummond was initially detained to the time he
was indicted. Drummond contends that because he was arrested and detained by INS
officials for the identical reason for which he was later indicted, i.e., for illegally re-
entering the United States after deportation, the thirty-day requirement in the Speedy
Trial Act runs from the date of his INS arrest and detention. We are not persuaded.
We recently considered and rejected similar arguments in United States v. Noel,
231 F.3d 833 (11th Cir. 2000). In Noel, the defendant/appellant was taken into
2
The Act provides in relevant part, that:
Any . . . indictment charging an individual with the commission of an offense
shall be filed within thirty days from the date on which such individual was
arrested or served with a summons in connection with such charges.
18 U.S.C. § 3161(b).
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custody by the INS after illegally reentering the United States following deportation.
More than thirty days elapsed from the time of his initial detention before a federal
grand jury returned an indictment against the defendant charging him with illegally
reentering the country in violation of 8 U.S.C. § 1326(a). The defendant moved to
dismiss the indictment on speedy trial grounds, arguing that he was “arrested” for
speedy trial purposes on the date he was detained by the INS. The district court
rejected his argument and we affirmed.
In rejecting the defendant’s arguments, we determined as a matter of first
impression in this Circuit that INS detentions preceding deportation are civil in nature
and do not trigger rights under the Speedy Trial Act.3 As such, the time period for the
Speedy Trial Act begins to run only “after an individual is ‘accused,’ either by an
arrest and charge or by an indictment.” Id. Because the defendant in Noel had not
been charged with violating 8 U.S.C. § 1326(a) at the time of his INS detention, the
detention itself did not trigger the running of the Speedy Trial Act. Id. (citing United
3
The language of the Speedy Trial Act also compels the conclusion that its provisions
were not intended to apply to INS detentions. The text of the statute specifically provides that
the Act’s 30-day requirement applies to indictments issued in connection with the offense for
which a defendant was arrested. 18 U.S.C. § 3162(b). The Act further defines “offense” as any
federal criminal offense. 18 U.S.C. § 3161(b). An arrest and detention pursuant to a deportation
proceeding is not an arrest for a federal criminal offense; rather it is a purely civil action to
determine eligibility to remain in this country, even though the act of entering and remaining
unlawfully in this country is itself a federal offense. INS v. Lopez-Mendoza, 468 U.S. 1032,
1038 (1984).
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States v. Reme, 738 F.2d 1156, 1162 (11th Cir. 1984)(although defendant was
detained by INS on October 21, the Speedy Trial Act was not triggered until the
following July when defendant was served with a warrant issued pursuant to the
indictment)). See also United States v. Cepeda-Luna, 989 F.2d 353, 355-56 (9th Cir.
1993)(Speedy Trial Act’s 30-day requirement does not apply when initial detention
was civil in nature and federal criminal charges were not filed at the time of the INS
detention).
Similarly, in the instant case, Drummond was not charged with violating 8
U.S.C. § 1326(a) and (b)(2) at the time of his initial detention by the INS. Rather, INS
officials took him into custody to await deportation proceedings. Because the
detention was civil in nature and federal criminal charges were not filed at that time,
we cannot apply the 30-day requirement of the Speedy Trial Act from the moment
Drummond was civilly arrested on December 11, 1998. It was only after Drummond
was arrested in connection with the criminal charge for which he was actually indicted
that the time limits of the Speedy Trial Act were triggered. Accordingly, there is no
violation of the Speedy Trial Act.
We have recognized a limited exception to the rule that INS detentions are civil
in nature and do not trigger the Speedy Trial Act. While routine INS detentions
incident to deportation will not trigger the Speedy Trial Act, a contrary result may be
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warranted when deportations are used by the government as “mere ruses to detain a
defendant for later criminal prosecution.” Noel, 231 F. 3d at ---; Cepeda-Luna, 989
F.2d at 357. To invoke this exception, however, we have placed the burden on the
detainee to establish that the “primary or exclusive purpose of the civil detention was
to hold him for future prosecution.” See Noel, 231 F.3d at ---. Drummond has
produced no evidence in this action to demonstrate that his civil detention was a ruse
to hold him for later prosecution or that the detention served any purpose other than
to facilitate his deportation.
We turn now to Drummond’s argument that the district court erred by applying
a 16-level enhancement to his offense level based on the court’s finding that
Drummond was previously convicted of an aggravated felony. Section
2L1.2(b)(1)(A) of the Sentencing Guidelines allows for a 16-level enhancement when
a defendant who unlawfully enters the United States has previously been deported
after being convicted of an aggravated felony. The application notes for this provision
adopt the definition of “aggravated felony” provided at 8 U.S.C. § 1101(a)(43), which
includes “crime of violence . . . for which the term of imprisonment [sic] at least one
year. . ..”
According to the PSI, Drummond had a prior conviction in a New York state
court for menacing, a Class A misdemeanor with a maximum of one year’s
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imprisonment under New York law, for which he was actually sentenced to one year
of imprisonment. Based on his prior conviction for menacing, the district court
enhanced Drummond’s base offense level in accordance with 2L1.2(b)(1)(A).
Although Drummond argues that it is unclear whether his prior conviction for
menacing falls within the statutory definition of aggravated felony, i.e., a crime of
violence for which the term of imprisonment is at least one year, we have little trouble
in so concluding. “Crimes of violence” include offenses that have as an element the
use, attempted use, or threatened use of physical force against the person or property
or another. 18 U.S.C. § 16. A person is guilty of menacing under New York law
when he intentionally places or attempts to place another in fear of physical injury,
serious injury, or death by displaying a deadly weapon or instrument. N.Y. STAT. §
8120.14.4 The undisputed facts underlying Drummond’s menacing conviction are as
follows:
On May 28, 1997, the defendant attempted to throw his wife off a second
floor balcony. On May 29, 1997, the defendant again threatened to do
harm to his wife and children. According to the police report, on July 9,
1997, the defendant held a firearm to his girlfriend’s head and threatened
to kill her and the kids if she opened the door and called police.
We are convinced that Drummond’s prior conviction for menacing clearly
satisfies the “crime of violence” component of the definition of aggravated felony.
Moreover, we have held that for purposes of § 2L1.2(b)(1)(A), the length of the
sentence actually imposed determines whether crimes of violence constitute
4
Specifically, New York Penal Law Section 120.14 provides that a person is guilty of
menacing when:
1. He or she intentionally places or attempts to place another person in
reasonable fear of physical injury, serious physical injury or death by displaying a
deadly weapon, dangerous instrument or what appears to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm; or
2. He or she repeatedly follows a person or engages in a course of conduct or
repeatedly commits acts over a period of time intentionally placing or attempting
to place another person in reasonable fear of physical injury, serious physical
injury, or death;
3. He or she commits the crime of menacing in the third degree in violation of
that part of a duly served order of protection, or such order which the defendant
has actual knowledge of because he or she was present in court when such order
was issued, pursuant to article eight of the family court act, section 530.12 of the
criminal procedure law, or an order of protection issued by a court of competent
jurisdiction in another state, territorial or tribal jurisdiction; which directed the
respondent to stay away from the person or persons on whose behalf the order
was issued.
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aggravated felonies. United States v. Maldonado-Ramirez, 216 F.3d 940, 944 (11th
Cir. 2000); United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000).
Because Drummond was sentenced to a year imprisonment, the New York conviction
for menacing qualified as an aggravated felony, and the district court did not err in
applying the 16-level sentencing enhancement.
AFFIRMED
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