United States v. Adkins ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5704
GARY ADKINS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5705
GARY ADKINS,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-95-72, CR-94-103)
Argued: June 7, 1996
Decided: December 5, 1996
Before RUSSELL, WIDENER, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Russell joined. Judge Michael wrote a concurring opin-
ion.
_________________________________________________________________
COUNSEL
ARGUED: James Orlando Broccoletti, ZOBY & BROCCOLETTI,
Norfolk, Virginia, for Appellant. Janet S. Reincke, Assistant United
States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Helen
F. Fahey, United States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
OPINION
WIDENER, Circuit Judge:
The defendant appeals from the sentences imposed by the district
court for his convictions of re-entry into the United States without the
consent of the Attorney General, having previously been deported,
under 8 U.S.C. § 1326; and for failure to appear for sentencing, in
violation of 18 U.S.C. § 3146(a)(1). We affirm.
The facts underlying the offenses are not disputed. On January 27,
1988 Adkins was convicted in Magistrates Court, Durban, South
Africa, for dealing in 11 kilograms of cannabis, for which he was sen-
tenced to 20 months imprisonment and further two years imprison-
ment, which was conditionally suspended for a period of four years.
On February 9, 1988, Adkins entered the United States without
revealing to the government his conviction in South Africa for dealing
cannabis. He applied for an adjustment of his work status as an immi-
grant, which was denied due to his January 27, 1988 conviction for
dealing in cannabis. On December 8, 1989, he was ordered deported
to South Africa by an immigration judge, and he voluntarily departed
from the United States on December 13, 1989. On October 19, 1990
Adkins attempted to secure permission to re-enter the United States
from South Africa, but permission was denied. Subsequent to Decem-
ber 13, 1989 and prior to May 28, 1992, Adkins illegally re-entered
the United States, having previously been deported and without hav-
ing obtained express consent from the Attorney General.1
_________________________________________________________________
1 Adkins says his re-entry was on or about September 15, 1991. (Brief,
p. 8)
2
On July 28, 1994, the government filed a criminal information
charging Adkins with unlawful re-entry, having previously been
deported, under 8 U.S.C. § 1326. On that same date, Adkins pleaded
guilty to that information under a written plea agreement and, after a
continuance, his sentencing was set for November 1, 1994. Adkins
did not appear, however, for his sentencing, and he was later arrested
by the Coast Guard off the coast of North Carolina on April 13, 1995.
Due to a disagreement between the government and the defendant
over the sentence which might be imposed, the district court on July
24, 1995, permitted Adkins to withdraw his guilty plea, entered July
28, 1994, to the information of July 28, 1994. In the meantime,
Adkins had been indicted on April 26, 1995 for failing to report for
sentencing in violation of 18 U.S.C. § 3146(a)(1); and had pleaded
guilty to that indictment on June 2, 1995.
Adkins, on July 24, 1995, then pleaded guilty again, this time not
under any plea agreement, to the July 28, 1994 information charging
unlawful re-entry. A sentencing hearing on both charges, illegal re-
entry and failing to appear, was held August 29, 1995. The district
court held that Adkins was guilty of an aggravated felony under
§ 1326(b)(2). It sentenced him to 46 months in prison on the illegal
re-entry count, and 11 months in prison on the failure to appear count,
to run consecutively.
Under § 1326(b)(2), as amended in 1988, for a violation of § 1326,
subsequent to a conviction for an aggravated felony, the punishment
was a fine and imprisonment not to exceed 15 years or both. That stat-
ute was amended in 1994 to increase the imprisonment to 20 years.
The 15 year limit would apply in this case.
In 1990, 8 U.S.C. § 1101(a)(43) was amended to include in the def-
inition of an aggravated felony in § 1326(b)(2) illicit trafficking in a
controlled substance, even in violation of foreign law. The effective
date of the 1990 amendment provided that it "shall apply to offenses
committed on or after the date of the enactment of this Act . . . ."
§ 501(b), P. L. 101-649, 104 Stat. 4978, 5048.
Adkins argues that his drug trafficking conviction in South Africa
does not constitute an aggravated felony conviction because the South
3
African conviction was in 1988 and the effective date of the 1990
amendment was November 29, 1990.
We held only recently, however, in United States v. Campbell, 94
F.3d 125, (4th Cir. 1996), that the effective date of the 1990 amend-
ments "was to provide an effective date for the relevant offense of
illegal re-entry into the United States after deportation, and was not
applicable to the predicate offenses that may be used to enhance the
sentence." 94 F.3d at 128. Therefore, Adkins' argument in this respect
is foreclosed, according to his own statement, his re-entry date was
about September 15, 1991.
So far as Adkins also argues that the provision with respect to for-
eign offenses making up aggravated felonies applies only if the sen-
tences for them are at least five years, we are of opinion that argument
is without merit. The fact that his South African conviction was for
drug trafficking, as the question is presented here, is sufficient to
make that offense an aggravated felony under § 1326(b)(2) and
§ 1101(a)(43).
The first time Congress specified a term of imprisonment for a
crime to be considered an aggravated felony, it did so in the 1990
amendment to § 1101(a)(43). In 1988, Congress first defined an
aggravated felony as murder, drug trafficking, illegal trafficking in
firearms or destructive devices, or any attempt or conspiracy to com-
mit these crimes. Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,
§ 7342, 101 Stat. 4181, 4469-70. Congress did not include any
required term of imprisonment. In 1990, Congress expanded the defi-
nition to include illicit trafficking in any controlled substance, money
laundering, and "any crime of violence . . . for which the term of
imprisonment imposed . . . is at least 5 years." Immigration Act of
1990, Pub. L. No. 101-649, § 501(a), 104 Stat. 4978, 5048. Without
any indication that Congress intended to apply the five year limitation
to all of the listed crimes, it is clear that the five year term restriction
applies only to crimes of violence.2 See United States v. Andrino-
_________________________________________________________________
2 While not relying on a subsequent amendment as evidence of prior
Congressional intent, we note that the Immigration and Nationality Tech-
nical Corrections Act of 1994, Pub. L. No. 103-416,§ 222(a), 108 Stat.
4305, 4320-22, clarifies without a doubt that the five year term of impris-
onment restriction applies only to crimes of violence. See 8 U.S.C.
§ 1101(a)(43)(A)-(F).
4
Carillo, 63 F.3d 922, 925 (9th Cir. 1995), cert. denied, 64 U.S.L.W.
3467 (U.S. Jan. 8, 1996).
Finally, Adkins appeals the district court's application of the sen-
tencing guidelines to his failure to appear charge. Adkins' complaint
rests with the fact that the court determined that his South African
drug conviction qualified as an aggravated felony under the statute.
As we have seen, that determination was proper. Because the foreign
conviction is an aggravated felony, the court's application of the sen-
tencing guidelines to Adkins' failure to appear charge was also
proper.
The judgment of the district court is accordingly
AFFIRMED.
MICHAEL, Circuit Judge, concurring:
I concur in the majority opinion. Because we are bound by our cir-
cuit's recent panel opinion in United States v. Campbell, 94 F.3d 125(4th Cir. 1996), I accept the majority's determination that the Novem-
ber 29, 1990, effective date of the amendments to 8 U.S.C.
§ 1101(a)(43) applies to Adkins' offense of illegal entry, which
occurred in September 1991, and not to his predicate offense of deal-
ing cannabis, which occurred in South Africa in 1988. If Campbell
was not on the books, I would vote that the 1990 effective date provi-
sion applies to the aggravated felonies (such as Adkins' foreign drug
offense) added in the amended section, § 1101(a)(43), and not to
Adkins' offense of illegal entry, which is covered by a different sec-
tion, § 1326(b)(2). I would have supported such a vote on the reason-
ing of United States v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir.
1996) (en banc).
5