United States v. Ayala-Segoviano , 371 F. App'x 643 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0213n.06
No. 06-6082
FILED
UNITED STATES COURT OF APPEALS
Apr 07, 2010
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
ESTEBAN AYALA-SEGOVIANO, MIDDLE DISTRICT OF TENNESSEE
Defendant-Appellant.
/
BEFORE: KEITH, CLAY, and GRIFFIN, Circuit Judges.
CLAY, Circuit Judge. Defendant, Esteban Ayala-Segoviano, appeals from his sentence
after pleading guilty to one count of illegally reentering the United States in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). For the reasons set forth below, we VACATE Defendant’s sentence and
REMAND for proceedings consistent with this opinion.
BACKGROUND
On September 28, 2005, Defendant Esteban Ayala-Segoviano was charged with one count
of illegally reentering the United States in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On April 17,
2006, Defendant pled guilty to this charge. On August 14, 2006, the district court sentenced
Defendant to 70 months imprisonment followed by a two year term of supervised release. The
district court ordered that the term of supervised release be tolled upon Defendant’s expected
deportation.
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During the April 17, 2006 plea hearing, Special Agent Glen Blache from the Bureau of
Immigration and Customs Enforcement (“BICE”) testified to the facts that the government would
expect to prove at trial. According to Blache, Defendant is a citizen of Mexico who had previously
been deported on three occasions. Defendant was previously convicted of voluntary manslaughter
on April 29, 1996 in Clay County, Tennessee under the name Pedro Nyala Segobiano and sentenced
to serve up to five years. He was last deported from the United States on June 8, 1999 under the
name Esteban Nyala-Segoviano and returned to Mexico through El Paso, Texas. He was arrested
again on September 9, 2004 in Rutherford County, Tennessee under the name Luis Angel Melgoza
for a domestic assault committed on August 11, 2004. He pled guilty to that charge and was
sentenced to serve 11 months and 29 days. He completed that sentence and came into the custody
of BICE. Defendant’s immigration file contains no record that Defendant obtained permission from
the Attorney General or the Secretary of the Department of Homeland Security (“DHS”) to reapply
for admission or return to the United States.
At the plea hearing, Defendant acknowledged only that he illegally reentered the United
States after being deported and did not admit or deny any information relating to his criminal history.
Both the government and Defendant agreed that the issue of prior convictions is a sentencing factor
and is not an element of the offense of illegal reentry. Thus, Defendant was not required to make
any admissions regarding his criminal history for the court to accept his plea.
The U.S. Sentencing Guidelines (“USSG”) require a 16 level enhancement to the offense
level for an illegal reentry offense involving a prior aggravated felony considered to be a “crime of
violence.” USSG § 2L1.2(b)(1)(A). At the sentencing hearing, upon the recommendation of the
probation officer and over Defendant’s objection, the district court imposed a 16 level enhancement
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for the voluntary manslaughter conviction obtained in 1996. Based on this enhancement, the court
calculated the guideline range as 70 to 87 months before sentencing Defendant to 70 months
imprisonment followed by a two year term of supervised release.
On August 14, 2006, Defendant filed a timely notice of appeal. On November 13, 2006,
Defendant filed his brief in this appeal. On November 30, 2006, the government filed its opposition
brief. On December 6, 2006, Defendant filed a motion asking that this appeal be held in abeyance
pending en banc review by this Court of the panel decision in United States v. Ossa-Gallegos, 491
F.3d 537 (6th Cir. 2007). On January 11, 2007, this Court granted Defendant’s motion and held this
appeal in abeyance. Also on January 11, 2007, Defendant mailed his reply brief before receiving the
order of this Court granting his motion to hold this appeal in abeyance. On January 12, 2007,
Defendant’s reply brief was received and filed by the Court.
On June 21, 2007, this Court issued its en banc decision in Ossa-Gallegos, 491 F.3d at 545,
holding that district courts may not order tolling the period of supervised release as a special
condition of supervised release pursuant to 18 U.S.C. § 3583(d). On July 6, 2007, Defendant filed
a letter advising the Court of the decision in Ossa-Gallegos. On September 29, 2009, the
government filed a supplemental brief in which it concedes that Ossa-Gallegos controls this case and
that the district court lacks authority to order that the period of a defendant’s supervised release be
tolled during the time that he remains outside the jurisdiction of the United States following his
deportation. Thus, this issue is no longer contested on appeal.
DISCUSSION
I. Tolling Supervised Release
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Based on the controlling authority of Ossa-Gallegos, 491 F.3d at 545, we hold that the
district court exceeded its authority by ordering that the period of Defendant’s supervised release be
tolled during the time that he remains outside the jurisdiction of the United States following
deportation.
II. Sixth Amendment Claim
“A district court’s interpretation of the Sentencing Guidelines is subject to de novo review.”
United States v. Williams, 411 F.3d 675, 677 (6th Cir. 2005). Additionally, we review a
constitutional challenge to a sentence de novo. United States v. Hill, 440 F.3d 292, 298 (6th Cir.
2006).
Defendant argues that the district court violated his Sixth Amendment rights by enhancing
his sentence based on facts that were neither admitted by Defendant nor found by a jury beyond a
reasonable doubt. Specifically, Defendant argues that the district judge violated his Sixth
Amendment rights by applying a 16-level enhancement to Defendant’s sentence based on a 1996
conviction for voluntary manslaughter, when Defendant did not admit or deny any information
relating to his criminal history in his guilty plea. Defendant concedes that his argument is foreclosed
by United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005), but Defendant raises this issue to
preserve it for Supreme Court review. Defendant argues that it appears based on Justice Thomas’
concurrence in Shepard v. United States, 544 U.S. 13, 27 (2005) that a majority of justices on the
Supreme Court may be inclined to rule that the prior conviction exception to the Apprendi-Booker
rule violates the Sixth Amendment. In the instant case, Defendant pled guilty to 8 U.S.C. §§ 1326(a)
and (b)(2) without admitting or denying any information relating to his criminal history.
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This Court has found that “a judge can make factual findings about a defendant’s prior
convictions without implicating the Sixth Amendment.” United States v. Richardson, 437 F.3d 550,
555 (6th Cir. 2006) (citing Booker, 543 U.S. at 244; Blakely v. Washington, 542 U.S. 296, 301, 124
S. Ct. 2531, 159 L. Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,
147 L. Ed.2d 435 (2000); United States v. Hollingsworth, 414 F.3d 621, 624 (6th Cir. 2005) (“The
determination that Hollingsworth’s prior convictions for multiple counts of aggravated assault and
aggravated robbery included at least one crime of violence was thus squarely within the province of
the sentencing judge.”)). In Barnett, this Court specifically foreclosed Defendant’s argument by
finding that a judge rather than a jury may determine both the fact and the nature of prior convictions
under Apprendi. 398 F.3d at 525 (“the district court’s authority to determine the existence of prior
convictions [is] broad enough to include determinations regarding the nature of those prior
convictions”).
In addition, the Supreme Court has effectively foreclosed Defendant’s argument under the
specific statue at issue. Under 8 U.S.C. §1326(a), “any alien who–(1) has been . . . deported . . ., and
thereafter (2) enters . . ., or is at any time found in, the United States [without the Attorney General’s
consent or the legal equivalent] shall be fined under title 18, or imprisoned not more than 2 years,
or both.” Section1326(b)(2) provides that in the case of any alien described in subsection a “whose
deportation was subsequent to a conviction for commission of an aggravated felony, such alien shall
be fined under such title, imprisoned not more than 20 years, or both.” 8 U.S.C §1326(b)(2). In
Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998), the Supreme Court held that 8 U.S.C.
§1326(b)(2) “is a penalty provision [that] authorizes a court to increase the sentence for a recidivist,”
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not a separate crime. Thus, the government is not required to charge the fact of an earlier conviction
in the indictment for a judge to consider it during sentencing. Id. at 227.
Therefore, we hold that the district court did not violate Defendant’s Sixth Amendment rights
by enhancing his sentencing guideline offense level based upon a prior conviction for an aggravated
felony.
CONCLUSION
Because the district court exceeded its authority by ordering that Defendant’s supervised
release be tolled during the time that he remains outside the jurisdiction of the United States
following deportation, we VACATE the district court’s sentence and REMAND for proceedings
consistent with this opinion.
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