United States v. Eversley ( 1995 )


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  •                                                                                                                            Opinions of the United
    1995 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-31-1995
    United States v Eversley
    Precedential or Non-Precedential:
    Docket 94-7482
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
    Recommended Citation
    "United States v Eversley" (1995). 1995 Decisions. Paper 146.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1995/146
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    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _________________
    No. 94-7482
    _________________
    UNITED STATES OF AMERICA,
    Appellee
    v.
    ANDRE BENSON EVERSLEY,
    Appellant
    _____________________________________
    On Appeal From the District Court of the
    Virgin Islands (St. Croix)
    (D.C. Crim. No. 94-cr-00016)
    _____________________________________
    Argued: April 20, 1995
    Before: BECKER, NYGAARD, and ROTH, Circuit Judges
    (Filed:   May 31, 1995)
    STEPHEN A. BRUSCH, ESQUIRE
    (ARGUED)
    Office of Federal Public
    Defender
    P. O. Box 1327
    Charlotte Amalie, St. Thomas
    USVI, 00804-1327
    Attorney for Appellant
    KIM L. CHISHOLM, ESQUIRE
    (ARGUED)
    Office of United States
    Attorney
    United States Courthouse
    5500 Veterans Building
    Suite 260
    Charlotte Amalie, St. Thomas
    USVI, G 00802-6924
    Attorney for Appellee
    ___________________________
    OPINION OF THE COURT
    ___________________________
    BECKER, Circuit Judge.
    The defendant, Andre Benson Eversley, a citizen of
    Guyana, having been deported from the United States following the
    commission of an aggravated felony, was again found in the United
    States and was indicted in the District Court of the Virgin
    Islands on charges of illegally entering the country.     Pursuant
    to a plea bargain, Eversley was permitted to plead guilty to a
    violation of 8 U.S.C.A. § 1326(b)(1) (1993) for entering the
    country illegally following the commission of a non-aggravated
    felony.1   The court imposed a sentence of fifty months
    1
    . Reentry into the country by a deported alien is governed by
    § 1326, which, at the time of Eversley’s conviction, provided:
    § 1326 Reentry of deported alien; criminal penalty for
    reentry of certain deported aliens
    (a)   Subject to subsection (b) of this
    section, any alien who --
    (1)    has been arrested     and
    deported . . . and thereafter
    (2) enters . . . or is at any
    time found in the United States . .
    . shall be . . . imprisoned not
    more than 2 years . . . .
    (b)   Notwithstanding subsection (a) of
    this section, in the case of any alien
    described in such subsection --
    imprisonment.   On appeal, Eversley challenges the propriety of
    this sentence to the extent that the district court used
    sentencing guideline § 2L1.2(b)(2), which pertains to defendants
    with a prior conviction of an aggravated felony and makes that
    status a specific offense characteristic carrying a sixteen level
    increase on the base offense level, as opposed to sentencing
    guideline § 2L1.2(b)(1), which pertains to defendants with a
    prior conviction of a non-aggravated felony and provides for only
    a four level increase.2   Because we conclude that the district
    (..continued)
    (1)    whose deportation was
    subsequent to a conviction for
    commission of . . . a felony (other
    than an aggravated felony) such
    alien shall be . . . imprisoned not
    more than five years . . . or
    (2)     whose deportation was
    subsequent to a conviction for
    commission of an aggravated felony,
    such    alien   shall  be   .  .  .
    imprisoned not more than 15 years .
    . . .
    8 U.S.C.A. § 1326 (1993).
    2
    . At the time of Eversley’s sentencing, section 2L1.2 of the
    sentencing guidelines provided:
    § 2L1.2. Unlawfully Entering or Remaining in the
    United States
    (a)   Base Offense Level: 8
    (b)   Specific Offense Characteristics
    If more than one applies, use the greater:
    (1)   If the defendant previously was deported
    after a conviction for a felony, other
    than a felony involving violation of the
    immigration laws, increase by 4 levels.
    court’s use of guideline § 2L1.2(b)(2) was proper, we will
    affirm.3
    I
    The defendant, a resident alien, was arrested and
    convicted during 1988 in Brooklyn, New York for the sale of crack
    cocaine, an aggravated felony, and was subsequently deported as a
    controlled substance trafficker in January 1989.   In April 1994,
    he was found within the United States, on the island of St. John,
    by a United States Immigration Inspector.
    Following indictment and plea, the district court
    sentenced Eversley for a violation of § 1326(b)(1).   In so doing,
    the court applied, pursuant to guideline § 2L1.2(b)(2), a sixteen
    level enhancement to Eversley’s base offense level of eight,
    which resulted (following the grant of a three level downward
    adjustment for Eversley’s acceptance of responsibility) in a
    total offense level of 21.   Given Eversley’s criminal history
    category of III, the applicable guideline range was forty-six to
    (..continued)
    (2)   If the defendant previously was deported
    after a conviction for an aggravated
    felony, increase by 16 levels.
    U.S.S.G. § 2L1.2 (1993).
    3
    . In reaching this result, we need not address the question,
    raised by Eversley on appeal, whether § 1326(b)(1) and (2)
    constitute sentence enhancement provisions or criminal offenses
    distinct from § 1326(a), because Eversley’s sentence of 50 months
    was properly imposed even if we conclude that § 1326(b)(1) and
    (2) constitute separate criminal offenses. See infra note 5.
    fifty-seven months.    As we have stated, the court imposed a
    sentence of fifty months.
    At his sentencing hearing Eversley contended that,
    given his plea bargain agreement, the district court was required
    to use the four level sentence enhancement of sentencing
    guideline § 2L1.2(b)(1) (for defendants with a prior conviction
    of a non-aggravated felony), and a corresponding applicable
    guideline range of ten to sixteen months, instead of the sixteen
    level enhancement of § 2L1.2(b)(2) (for defendants with a prior
    conviction of an aggravated felony), which, as noted, resulted in
    a much higher range.    The district court disagreed, but offered
    him an opportunity to withdraw his plea if he felt that it did
    not accord with his original understanding of the plea
    arrangement.   App. at 49 & 51.   Eversley declined this offer and
    argues on appeal that the district court erred, as a matter of
    law, in applying guideline § 2L1.2(b)(2) to his conviction.     Our
    review is plenary.    United States v. Collado, 
    975 F.2d 985
    , 989
    (3d Cir. 1992).
    II
    Eversley concedes that he was in fact deported for the
    commission of an aggravated felony.    He nonetheless repeats on
    appeal his contention that, since his indictment was treated as a
    violation of § 1326(b)(1) (re-entry after deportation following
    commission of a felony "other than an aggravated felony") rather
    than of § 1326(b)(2) (re-entry after deportation following
    commission of an "aggravated felony"), the district court should
    have applied the four level enhancement of sentencing guideline
    § 2L1.2(b)(1) (for the prior commission of a non-aggravating
    felony) as opposed to the sixteen level enhancement of guideline
    § 2L1.2(b)(2) (for the prior commission of an aggravated felony).
    Notwithstanding the parallel structure of the guideline and
    statute, we disagree.   The fact that Eversley pled guilty to a
    violation of § 1326(b)(1) did not eliminate, as we demonstrate,
    the requirement that the sentencing court apply guideline
    § 2L1.2(b)(2) to his conviction.
    Section 2L1.2(b) provides for an offense level
    enhancement for violations of § 1326, depending upon the presence
    of specific offense characteristics, and states: "[i]f more than
    one applies, use the greater."     U.S.S.G. § 2L1.2(b); see 
    id. Application Note
    5 ("An adjustment under subsection (b)(1) or
    (b)(2) for a prior felony conviction applies in addition to any
    criminal history points added for such conviction in Chapter
    Four, Part A (Criminal History).").     The sixteen point
    enhancement of subsection (b)(2) was added by the sentencing
    commission to strengthen the penalties for violations of § 1326
    by eliminating the government’s need to request a discretionary
    upward departure in cases where the defendant had been convicted
    of a previous aggravated felony.    Commentary to Amend. 375.
    The structure and language of the guidelines make clear
    that subsection (b)(2) of § 2L1.2 applies to all violations of
    § 1326.   Section 1B1.2(a) of the guidelines requires a sentencing
    court, in selecting a guideline, to determine the particular
    guidelines "most applicable to the offense of conviction."
    Eversley was indicted for a violation of § 1326(b)(1), and
    guideline 2L1.2 applies by its terms to all violations of 8
    U.S.C. § 1326.    See U.S.S.G. § 2L1.2 (commentary -- statutory
    provisions).    Similarly, the statutory appendix to the
    guidelines4 refers to § 2L1.2, in its entirety, for all
    violations of § 1326.    Eversley fails to point to anything in the
    language or structure of the guidelines or the history
    surrounding the adoption of § 2L1.2(b)(2) to suggest that the
    sentencing commission intended it to apply only to violations of
    § 1326(b)(2).    Accordingly, we conclude that the district court
    was required to apply the sixteen level enhancement of guideline
    § 2L1.2(b)(2) in this case, even though Eversley pled guilty to a
    violation of § 1326(b)(1).
    Approaching the argument from a slightly different
    angle, Eversley argues that the nature of the § 1326 violation
    controls the court’s factual determination of the defendant’s
    status as a felon or aggravated felon for purposes of applying
    the specific offense characteristics of § 2L1.2(b).   In
    particular, he contends that since he only pled guilty to having
    entered the country illegally following the commission of a non-
    aggravated felony, the court could not consider in sentencing him
    the fact that he had actually been deported following the
    commission of an aggravated felony.
    We reject this argument since the district court was
    required in sentencing the defendant to consider all available
    4
    . The statutory appendix "specifies the guideline section or
    sections ordinarily applicable to the statute of conviction."
    U.S.S.G. Statutory Appendix Introduction.
    information in determining whether it was necessary to apply the
    sixteen level enhancement of § 2L1.2(b)(2).   Guideline
    § 1B1.3(a)(4) clearly requires the sentencing court to determine
    the sentence "on the basis of any other information specified in
    the applicable guideline."   The fact that Eversley pled guilty to
    subsection (b)(1) of § 1326, as opposed to (b)(2), did not
    obviate the need of the sentencing court to abide by the dictates
    of guideline § 1B1.3(a)(4) by assessing the particular character
    of Eversley’s prior convictions and adjusting his sentence for
    his prior commission of an aggravated felony as specified by
    § 2L1.2(b)(2).
    The two other courts of appeals to have addressed this
    issue have also reached this conclusion.   In United States v.
    Frias-Trujillo, 
    9 F.3d 875
    (10th Cir. 1993), the court declared,
    in upholding the application of the sixteen level enhancement of
    § 2L1.2(b)(2) to a defendant who pled guilty to a violation of
    § 1326(b)(1), that the structure of the guidelines "clearly
    indicates that the sentencing court's consideration is not
    limited by the particular subsection of 1326 at issue."   
    Id. at 877.
      Moreover, the Ninth Circuit, which is the only circuit to
    have treated § 1326(b) as a separate criminal offense, see infra
    note 5, agrees with this analysis; it has concluded that,
    notwithstanding a defendant’s plea to a violation of
    § 1326(b)(1), "[t]he clear language of the Sentencing Guidelines
    requires the sentencing court to increase the base offense by
    sixteen levels, if defendant was deported after conviction for an
    aggravated felony."   United States v. Pena-Carrillo, 
    46 F.3d 879
    ,
    883-85 (9th Cir. 1995) (relying on United States v. Arias-
    Granados, 
    941 F.2d 996
    (9th Cir. 1991)).   Eversley simply offers
    no argument to suggest these cases were incorrectly decided.5
    5
    . The parties devote much attention to the issue of whether
    § 1326(b) constitutes a separate criminal offense or a sentence
    enhancement provision for a violation of § 1326(a). This issue
    implicates whether the government would need to establish a
    defendant’s status under § 1326(b) as a "felon" or an "aggravated
    felon" as an element of a § 1326(b)(1) or (2) offense. While the
    proper characterization of § 1326(b) presents an interesting and
    difficult question that has divided the courts of appeals, we
    need not address this issue since Eversley’s sentence of 50
    months was properly imposed even if we assume that § 1326(b)(1)
    and (2) constitute distinct criminal offenses.
    This issue was first addressed by a court of appeals in
    United States v. Campos-Martinez, 
    976 F.2d 589
    , 591 (9th Cir.
    1992), where a defendant who had previously been convicted of a
    felony was indicted and pled guilty to a violation of § 1326(a)
    for illegal entry following deportation. While § 1326(a) carried
    with it a maximum sentence of two years, the district court
    imposed a sentence of 30 months, reasoning that § 1326(b)(1) and
    (2) did not constitute separate crimes with different elements
    and maximum sentences, but instead were merely sentence
    enhancements for a violation of § 1326(a). The Ninth Circuit
    reversed and concluded that the defendant’s 30 month sentence for
    a § 1326(a) violation was improper since it exceeded that
    provision’s two year statutory maximum. The court reasoned that
    illegal reentry following deportation for the commission of a
    felony is a distinct crime, as codified at § 1326(b)(1), and not
    "merely a sentence enhancement factor for the crime of reentry
    following deportation, which is codified at subsection 1326(a)."
    
    Id. at 592
    ("[S]ubsections 1326(a) and 1326(b)(1) describe two
    different crimes with different elements and maximum
    sentences.").
    After the decision in Campos, four other courts of
    appeals addressed this issue, and all four disagreed with Campos
    and concluded that the provisions of § 1326(b) are merely
    sentence enhancements for a violation of § 1326(a). See United
    States v. Cole, 
    32 F.3d 16
    , 19 (2d Cir.) (prior conviction
    necessary to trigger subsection (b) need not be proven at trial),
    cert. denied, 
    115 S. Ct. 497
    (1994); United States v. Crawford,
    
    18 F.3d 1173
    , 1177 (4th Cir.) (concluding that any alien who
    violates § 1326(a) is "subject to" the penalty provisions of
    § 1326(b)), cert. denied, 
    115 S. Ct. 171
    (1994); United States v.
    Forbes, 
    16 F.3d 1294
    , 1300 (1st Cir. 1994) ("[P]olicy and
    precedent persuade us that § 1326(b) should be construed as a
    III
    In sum, Eversley pled guilty and was sentenced under
    the guidelines to a violation of § 1326(b)(1).   He was fully
    apprised that under his plea arrangement the court would
    calculate his sentence pursuant to the sixteen level enhancement
    of § 2L1.2(b)(2).    In applying this section to his violation, the
    district court correctly interpreted the dictates of the
    guidelines.    Accordingly, the judgment of the district court will
    be affirmed.
    (..continued)
    sentence enhancement provision."); United States v. Vasquez-
    Olvera, 
    999 F.2d 943
    , 945 (5th Cir. 1993) (same), cert. denied,
    
    114 S. Ct. 889
    (1994).
    Eversley asks that we follow the result reached by the
    Ninth Circuit in Campos and require the government to establish
    Eversley’s status as an "aggravated felon" as an element of a
    distinct § 1326(b)(2) offense. But, the sentencing court in this
    case did not rely on § 1326(b)(2), rather it imposed a sentence -
    - 50 months -- well within the five year statutory maximum of
    § 1326(b)(1), a provision to which Eversley pled guilty. Unlike
    the district court in Campos, the sentencing court in this case
    did not rely on the fifteen year maximum sentence of § 1326(b)(2)
    (for reentry following an aggravated felony conviction) to impose
    a sentence in excess of the five year (b)(1) statutory maximum.
    Therefore, as we have stated, we must leave for another day the
    resolution of the question whether § 1326(b) constitutes a
    separate criminal offense or a sentence enhancement provision.