United States v. DeFreitas ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5677
ROBERT MELVIN DEFREITAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis III, District Judge.
(CR-95-139)
Submitted: August 22, 1996
Decided: September 12, 1996
Before HALL, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Kevin M. Schad, Cincinnati, Ohio, for Appellant. Helen F. Fahey,
United States Attorney, Joseph Perella, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Robert Melvin DeFreitas pled guilty to one count of reentry by a
deported alien in violation of 8 U.S.C.A. § 1326 (West Supp. 1996),
and was sentenced to forty-eight months incarceration. DeFreitas
appeals this sentence, contending that it violates the Ex Post Facto
Clause and that the government should be equitably estopped from
imposing a prison term of more than two years. Finding no error, we
affirm.
I.
DeFreitas was convicted in 1988 of possession with intent to dis-
tribute crack cocaine. After serving his prison term, the Immigration
and Naturalization Service ("INS") deported DeFreitas in August
1991 to Antigua, British Virgin Islands. The INS gave DeFreitas a
standard INS form, warning him in writing that if he illegally reen-
tered the United States, he could be subject to a maximum of two
years incarceration.
DeFreitas returned to the United States to visit his sick child but
did not obtain the Attorney General's consent. When he appeared in
January 1995 to answer allegations that he had violated the terms of
his supervised release, authorities arrested DeFreitas for illegally
reentering the United States after having been convicted of an aggra-
vated felony and being deported.
DeFreitas subsequently pled guilty to a one-count indictment,
charging illegal reentry by a deported alien in violation of 8 U.S.C.A.
§ 1326. At the sentencing hearing, DeFreitas challenged the sixteen-
level enhancement he received under U.S.S.G. § 2L1.2(b)(2)* as cruel
and unusual and sought a downward departure. The court overruled
DeFreitas' objections, sentenced him to forty-eight months incarcera-
tion, ordered three years of supervised release, and imposed a $50
special assessment. This appeal followed.
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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II.
DeFreitas raises two arguments on appeal. First, he contends that
because he was informed by the INS at the time of his deportation
that the maximum sentence he could receive upon unlawful reentry
was two years, his forty-eight-month sentence violates the Ex Post
Facto Clause. Second, DeFreitas asserts that his receipt of the INS
form should equitably estop the government from sentencing him to
more than two years incarceration. Because DeFreitas did not present
these arguments in the district court, we review only for plain error.
See United States v. Olano, 507 U.S. 725, 732-37 (1993).
We find no plain error here. At the time of DeFreitas' deportation
in 1991, 8 U.S.C.A. § 1326 provided for an enhanced sentence of up
to fifteen years imprisonment for aliens found in the United States
after being convicted of an aggravated felony and being deported. But
because DeFreitas committed the offense--illegal reentry by a
deported alien--in January 1995, the revised statute setting forth a
twenty-year maximum sentence and the amended guideline providing
for a sixteen-level enhancement already were in effect. Therefore, no
ex post facto violation occurred. See Collins v. Youngblood, 497 U.S.
37, 42 (1990) (citing Beazall v. Ohio, 269 U.S. 167 (1925)).
Further, DeFreitas' equitable estoppel argument also must fail. See
United States v. Agubata, 60 F.3d 1081, 1983 (4th Cir. 1995) (holding
that government is not equitably estopped from imposing longer sen-
tence than sentence referred to in INS form because government's
failure to amend form to reflect new, lengthier sentence did not
amount to affirmative misconduct), cert. denied , ___ U.S. ___, 64
U.S.L.W. 3558 (U.S. Feb. 20, 1996) (No. 95-6524).
III.
Accordingly, because we find no plain error, see Olano, 507 U.S.
at 732-37, we affirm DeFreitas' sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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