No. 96-7640 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 ROBERTO MORALES-LOPEZ, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General WILLIAM C. BROWN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the district court properly increased petitioner's offense level by 16 levels under Sentencing Guidelines 2L1.2 (b) (2) because, before he was convicted under 8 U.S.C. 1326 of illegally reentering the United States after having been deported, he had sustained a conviction for an aggravated felony. (I) ----------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7640 ROBERTO MORALES-LOPEZ, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The decision of the court of appeals (Pet. App. A) is unpublished, but the judgment is noted at 101 F.3d 698 (Table). JURISDICTION The judgment of the court of appeals was entered on October 21, 1996. A petition for rehearing was denied on December 4, 1996. The petition for a writ of certiorari was filed on January 27, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT Petitioner, an alien who is a citizen of Mexico, pleaded guilty in the United States District Court for the Western ---------------------------------------- Page Break ---------------------------------------- 2 District of Texas to illegally reentering the United States after having been deported, in violation of 8 U.S.C 1326. He was sentenced to 41 months' imprisonment. The court of appeals affirmed. Pet. App. A. 1. On December 21, 1990, petitioner was convicted in El Paso County, Texas, of burglary of a vehicle. On February 17, 1993, he was deported from the United States. He illegally returned to El Paso, where United States Border Patrol officers found him on November 4, 1995, during a routine check of a detention facility where he was jailed on a prostitution charge. Petitioner had not received permission from the Attorney General to reenter the United States. Gov't C.A. Br. 3. 2. Petitioner was charged in the United States District Court for the Western District of Texas with illegally reentering the United States after having been deported, in violation of 8 U.S.C. 1326. Subsection 1326 (a) provides that, subject to the provisions of subsection 1326 (b), illegally reentering the United States without authorization after deportation is punishable by not more than two years' imprisonment. Section 1326 (b) (1) provides that an alien who was deported after conviction of three misdemeanors for specified offenses or of a felony, other than an "aggravated felony," is subject to up to 10 years' imprisonment for unauthorized reentry into the United States. Section 1326 (b) (2) provides that an alien who was deported after conviction of an aggravated felony may be sentenced to up to 20 years' imprisonment for unauthorized reentry. For purposes of ------------------------------------------ Page Break ---------------------------------------- 3 Chapter 12 of Title 8 of the United States Code, which includes 8 U.S.C. 1326, the term "aggravated felony" is defined in 8 U.S.C. 1101 (a) (43). The government filed a notice of penalty enhancement alleging that petitioner had a prior aggravated felony conviction (the 1990 burglary), and was thus subject to the 20-year maximum sentence provided by 8 U.S.C. 1326 (b) (2). Petitioner pleaded guilty. The court imposed a sentence of imprisonment that was well below the 10-year statutory maximum term authorized by 8 U.S.C. 1326 (b)(1), and that thus did not bring Section 1326 (b) (2) into play. The court calculated the sentence under the applicable Sentencing Guidelines. Section 2L1.2 (a) of the Guidelines provides a base offense level of 8 for the offense of unlawful reentry into the United States after deportation, in violation of 8 U.S.C. 1326. Section 2L1.2 (b) (2) provides: "If the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels." 1 The commentary to Section 2L1.2 provides that the term "'[a]ggravated felony' as used in subsection (b) (2) [of Guidelines 2L1.2] means * * * any crime of violence * * * for which the term of imprisonment imposed (regardless of any ___________________(footnotes) 1 Where the 16-level aggravated-felony enhancement is not applicable, and where the defendant was deported after a conviction for a felony other than a felony involving violation of the immigration laws, Section 2L1.2 (b) (1) provides for a 4- level increase in the offense level. ---------------------------------------- Page Break ---------------------------------------- 4 suspension of such imprisonment) is at least five years." Sentencing Guidelines 2L1.2, Application Note 7. 2 The district court determined that petitioner's burglary conviction supported an offense-level increase of 16 levels under Guidelines 2L1.2 (b) (2), resulting in a total offense level of 21, and sentencing range of 46 to 57 months' imprisonment. The court departed downward to a sentence of 41 months' imprisonment because petitioner stipulated to his deportability and waived a formal deportation hearing. Gov't C.A. Br. 4-5. 3. On appeal, petitioner argued that the 16-level increase in his offense level under Sentencing Guidelines 2L1.2 (b) (2) was unauthorized because his burglary offense was committed before the effective date of the Immigration Act of 1990, which broadened the statutory definition of the term "aggravated felony" in 8 U.S.C. 1101 (a) (43). Before the amendment, the ___________________(footnotes) 2 The full text of Application Note 7 of Sentencing Guidelines 2L1.2 provides: "Aggravated felony," as used in subsection (b) (2), means murder; any illicit trafficking in any controlled substance (as defined in 21 U.S.C. 802), including any drug trafficking crime as defined in 18 U.S.C. 924 (c) (2); any illicit trafficking in any firearms or destructive devices as defined in 18 U.S.C. 921; any offense described in 18 U.S.C. 1956 (relating to laundering of monetary instruments); any crime of violence (as defined in 18 U.S.C. 16, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at leas five years; or any attempt or conspiracy to commit any such act. The term "aggravated felony" applies to offenses described in the previous sentence whether in violation of federal or state law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years. See 8 U.S.C. 1101 (a) (43). ---------------------------------------- Page Break ---------------------------------------- 5 statutory definition of "aggravated felony" did not include burglary and similar "crime[s] of violence." Pub. L. No. 100- 690, 7342, 102 Stat. 4469-4470. On November 29, 1990, as part of the Immigration Act of 1990, Congress amended Section 1101 (a)(43) to include any "crime of violence" for which the term of imprisonment was at least five years. Pub. L. No. 101-649, 501(a), 104 Stat. 4978, 5048. The court of appeals affirmed petitioner's sentence, ruling that his claim was foreclosed by the court's prior decision in United States v. Garcia-Rico, 46 F.3d 8, 9-10 (5th Cir.) (holding that 16-level Guidelines increase under Section 2L1.2 (b) (2) applies to an alien convicted of a "crime of violence" before the 1990 amendment of 8 U.S.C. 1101 (a) (43)), cert. denied, 115 S. Ct. 2596 (1995). ARGUMENT Petitioner contends that the court of appeals erred in sustaining the 16-level increase in his offense level under Section 2L1.2 (b) (2) of the Sentencing Guidelines based on his prior burglary conviction. That claim is incorrect and does not warrant review by this Court. The Court has recently denied a petition for certiorari in a case raising the same issue, and there is no reason for a different result here. 3 1. Petitioner does not dispute that his prior burglary is an "aggravated felony" under the Sentencing Guidelines' ___________________(footnotes) 3 See Bermudez-Reyes v. United States, No. 96-6714, cert. denied (March 17, 1997). --------------------------------------- Page Break ---------------------------------------- 6 definition. See Sentencing Guidelines 2L1.2, Application Note 7. Petitioner contends, however, that the fact that he committed the burglary offense before November 1990, when the statutory definition of aggravated felony was amended, see Pub. L. No. 101- 649, 501 (a), makes the 16-level increase under Section 2L1.2 (b) (2) inapplicable. The court of appeals correctly rejected that claim. The amendment to the Guidelines that added Section 2L1.2 (b) (2) and the related commentary defining an "aggravated felony" as used in that provision was effective November 1, 1991. United States Sentencing Comm'n, Guidelines Manual (Nov. 1, 1995) (Amendment 375). Where the Ex Post Facto Clause does not require otherwise, courts are generally required to apply the Sentencing Guidelines in effect at the time of sentencing. See 18 U.S.C. 3553 (a) (4) (A); United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.), cert. denied, 510 U.S. 858 (1993). As long as the illegal reentry itself occurred after the date on which Guidelines 2L1.2 was adopted, a prior aggravated felony conviction triggers the 16-level enhancement under Section 2L1.2 (b) (2), regardless of whether the felony conviction occurred before or after that Section's adoption. Because petitioner was convicted of having been found in the United States illegally in 1995, long after the November 1, 1991, effective date of Sentencing Guidelines 2L1.2 (b) (2), the court of appeals correctly upheld the enhancement of petitioner's offense level under that provision. ---------------------------------------- Page Break ---------------------------------------- 7 2. Based on the Ninth Circuit's decision in United States v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir. 1996) (en banc), petitioner argues that his burglary conviction is not an "aggravated felony" as that term is defined in 8 U.S.C. 1101 (a) (43) because it was committed before the effective date of the 1990 amendment that included burglary and other "crime[s] of violence" within that definition. Gomez-Rodriguez, however, involved only the application of the enhanced statutory maximum penalty under 8 U.S.C. 1326 (b) (2); it did not involve the application of Section 2L1.2 of the Sentencing Guidelines. Gomez-Rodriguez has no relevance to the 41-month sentence imposed here, which was below the 10-year statutory maximum applicable under 8 U.S.C. 1326 (b) (1) to Section 1326 violators whose deportation followed conviction for a felony not qualifying as an aggravated felony. In Gomez-Rodriguez, the government appealed from the dismissal of an indictment alleging that the defendant had violated 8 U.S.C. 1326 (b) (2) based on an October 26, 1990, conviction of a crime of violence. 4. If convicted under Section ___________________(footnotes) 4 The defendant in Gomez-Rodriguez was indicted under 8 U.S.C. 1326 (b)(2), rather than under Section 1326 generally, because the Ninth Circuit, alone among the courts of appeals to address the question, has held that Section 1326 (b) creates a separate offense independent of Section 1326 (a). See United States v. Campos-Martinez, 976 F.2d 589, 592 (9th Cir. 1992). In the Ninth Circuit, therefore, a prior felony conviction must be charged in the indictment as an element of the offense in order to permit imposition of increased maximum terms of imprisonment authorized by Section 1326 (b). The majority of the circuits have held, contrary to the Ninth Circuit, that Congress intended Section 1326 (b) to be a sentencing enhancement provision rather than a separate offense. See United States v. Forbes, 16 F.3d ---------------------------------------- Page Break ---------------------------------------- 8 1326 (b) (2), the defendant in Gomez-Rodriguez would have been subject to the enhanced maximum term of 20 years' imprisonment provided by Section 1326 (b) (2). The dismissal of the indictment in Gomez-Rodriguez turned on the Ninth Circuit's interpretation of the effective-date provision of the amendment to 8 U.S.C. 1101 (a) (43) -- the statute defining the term "aggravated felony" for purposes of 8 U.S.C. 1326 and other provisions of Chapter 12 of Title 8, United States Code. As noted above, Section 1101 (a) (43) did not include burglary and similar "crime[s] of violence" within the statutory definition of an "aggravated felony" until Congress enacted the Immigration Act of 1990. Pub. L. No. 101-649, 501(a), 104 Stat. 4978, 5048. The effective- date provision for amended Section 1101 (a) (43) stated that the portion of the 1990 amendment adding "crime[s] of violence" to the statutory aggravated felony definition applies to "offenses committed on or after the date of the enactment of this Act." Id. at 501 (b). ___________________(footnotes) 1294, 1296-1300 (1st Cir. 1994); United States v. Cole, 32 F.3d 16, 18 (2d Cir.), cert. denied, 115 S. Ct. 497 (1994); United States v. DeLeon-Rodriguez, 70 F.3d 764 (3d Cir. 1995), cert. denied, 116 S. Ct. 1343 (1996); United States v. Crawford, 18 F.3d 1173 (4th Cir.), cert. denied, 115 S. Ct. 171 (1994); United States v. Vasquez-Olvera, 999 F.2d 943 (5th Cir. 1993), cert. denied, 510 U.S. 1076 (1994); United States v. Munoz-Cerna, 47 F.3d 207, 210 n.6 (7th Cir. 1995); United States v. Haggerty, 85 F.3d 403, 404-405 (8th Cir. 1996); United States v. Valdez, 103 F.3d 95 (10th Cir. 1996); United States v. Palacios-Casquete, 55 F.3d 557 (11th Cir. 1995), cert. denied, 116 S. Ct. 927 (1996). This Court has granted certiorari to address that question. See Almendarez-Torres v. United States, No. 96-6839 (cert. granted March 31, 1997). Petitioner does not, however, raise that question here. ---------------------------------------- Page Break ---------------------------------------- 9 The Gomez-Rodriguez court read the term "offenses" in the 1990 amendment's effective-date provision to refer to prior aggravated felony offenses, rather than to Section 1326 illegal- reentry offenses. Under that view, the 1990 statutory amendment applies only where the predicate crime of violence was committed after the amendment's November 29, 1990, effective date. Gomez- Rodriguez, 96 F.3d at 1264-1265. Because Gomez-Rodriguez's crime-of-violence conviction occurred before November 29, 1990, the Ninth Circuit upheld the dismissal of the indictment alleging a violation of 8 U.S.C. 1326 (b) (2). 96 F.3d at 1265. The Ninth Circuit in Gomez-Rodriguez addressed only whether the defendant in that case was subject to the increased statutory maximum term of imprisonment imposable under 8 U.S.C. 1326 (b)(2); it did not address whether, if the defendant were convicted under a provision of Section 1326 carrying a lower statutory maximum, Sentencing Guidelines 2L1.2 (b) (2) would nonetheless apply to determine the defendant's offense level within the statutorily prescribed range. The Gomez-Rodriguez issue is not squarely presented here. Petitioner's 41-month sentence is well below the statutory maximum under Section 1326 (b) (1) of 10 years' imprisonment applicable to those violators of Section 1326 who were deported after conviction for a non-aggravated felony; the sentence here thus does not depend upon the increase in the statutory maximum punishment provided by 8 U.S.C. 1326 (b) (2) that ---------------------------------------- Page Break ---------------------------------------- 10 was at issue in Gomez-Rodriguez. Even under the holding of Gomez-Rodriguez, petitioner was lawfully sentenced. 5 3. Petitioner argues, however, that "the aggravated felony definition in application note 7 has the same scope as the definition in 1101 (a) (43)." Pet. 11. Under petitioner's view, the 16-level enhancement under Guidelines 2L1.2 (b) (2) would only apply where a predicate violent crime postdated amendment of 8 U.S.C. 1101 (a) (43). That position is incorrect. The aggravated-felony definition in the commentary to Sentencing Guidelines 2L1.2, which became effective November 1, 1991, does not contain the same effective-date provision as accompanied the 1990 amendment to 8 U.S.C. 1101(a) (43). Several courts of appeals have thus held that the 16-level enhancement under Guidelines 2L1.2 (b) (2) applies where a prior offense was not ___________________(footnotes) 5 Petitioner points out that certain administrative interpretations by the Immigration and Naturalization Service and the Board of Immigration Appeals have been consistent with the holding in Gomez-Rodriguez. Pet. 12-13. Like the decision in Gomez-Rodriguez itself, those administrative rulings have no bearing on the availability of an offense-level enhancement pursuant to Sentencing Guidelines 2L1.2 (b) (2). Petitioner also incorrectly suggests (Pet. 13) that the decision of the court below is in conflict with Ramsey v. INS, 55 F.3d 580 (11th Cir. 1995); Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996); and Campos v. INS, 16 F.3d 118 (6th Cir. 1994). Those three decisions contain dicta approving, in the context of civil immigration proceedings, the same interpretation of the effective date provision of the 1990 amendment adopted in Gomez- Rodriguez. Like Gomez-Rodriguez, however, these decisions do not address the Sentencing Guidelines nor consider in any way the applicability of Guidelines 2L1.2 (b) (2) to convictions for a crime of violence occurring before the enactment of the 1990 amendment to the statutory definition. Rather, those decisions pertain to the use of the term "aggravated felony" in civil immigration proceedings. ---------------------------------------- Page Break ---------------------------------------- 11 defined as an aggravated felony under either the Guidelines or the statute at the time of conviction of that offense. See, e.g., United States v. Aranda-Hernandez, 95 F.3d 977 (10th Cir. 1996) (approving Section 2L1.2 (b) (2) enhancement based on 1984 drug conviction), cert. denied, No. 96-6752 (March 24, 1997); United States v. Campbell, 94 F.3d 125, 128 (4th Cir. 1996), (1989 manslaughter conviction), petitions for cert. pending, Nos. 96-6825 & 96-6860; United States v. Cabrera-Sosa, 81 F.3d 998, 1000-1001 (10th Cir.) (1990 drug conviction), cert. denied, 117 S. Ct. 218 (1996); United States v. Munoz-Cerna, 47 F.3d 207, 209-212 (7th Cir. 1995) (March 1990 crime of violence conviction); United States v. Garcia-Rico, 46 F.3d at 10 (January 1990 manslaughter conviction); United States v. Saenz-Forero, 27 F.3d 1016, 1020-1021 (5th Cir. 1994) (1985 drug conviction); United States v. Maul-Valverde, 10 F.3d 544, 546 (8th Cir. 1993) (1977 burglary conviction). 6 ___________________(footnotes) 6 Consistent with the reasoning of the cases distinguishing the application of the 1990 statutory amendment and the 1991 amendment to the Guidelines, several courts of appeals have held that a defendant who pleads guilty under 8 U.S.C. 1326 (b) (1) can nonetheless receive the 16-level aggravated felony enhancement under Guidelines Section 2L1.2 (b) (2). See, e.g., United States v. Eversley, 55 F.3d 870, 872 (3d Cir. 1995) ("The structure and language of the guidelines make clear that subsection (b) (2) of 2L1.2 applies to all violations of Section 1326."); United States v. Pena-Carrillo, 46 F.3d 879, 889-885 (9th Cir.) (16-level Guideline enhancement properly applied even where Section 1326 (b) (2) increase in maximum punishment did not), cert. denied, 115 S. Ct. 1990 (1995); United States v. Frias- Trujillo, 9 F.3d 875, 877-878 (10th Cir. 1993) ("[T]here is no indication that the [Sentencing] Commission intended to establish a direct correlation between the respective subsections of 1326 and 2L1.2 (b)."). ---------------------------------------- Page Break ---------------------------------------- 12 In a case decided after the petition in this case was filed, however, the Ninth Circuit extended the reasoning of Gomez- Rodriguez to a case, like this one, that raised only the application of the 16-level enhancement under Guidelines 2L1.2 (b) (2). See United States v. Fuentes-Barahona, No. 95- 50307, 1997 WL 169937 (1997) (per curiam). The court in Fuentes- Barahona held that the citation to 8 U.S.C. 1101 (43) in the Application Note to Guidelines 2L1.2 created an ambiguity as to whether the statutory effective date should apply to the Guideline as well, and that the question therefore should be resolved in the defendant's favor under the rule of lenity. Id. at 2*. In our view, Fuentes-Barahona is incorrect. There is no foundation for the suggestion that the citation to Section 1101 (a) (43) in Application Note 7 incorporate sub silentio the statutory effective-date provision into Guidelines 2L1.2 (b) (2). The cited codification of the statutory section does not contain the statutory effective-date language; rather, the effective-date provision appears at Pub. L. No. 101-649, 502(b), 104 Stat. 4978, 5048. The reference to 8 U.S.C. 1101 (a) (43) in the Guidelines commentary merely alludes to the fact that persons who are subject to enhanced statutory maximum penalties under amended Section 1101 (a) (43) are also among those persons who are eligible for a 16-level enhancement under Guidelines 2L1.2 (b). The conflict between Fuentes-Barahona and the decision in this case does not warrant this Court's review. The sentencing ---------------------------------------- Page Break ---------------------------------------- 13 Commission is charged with "[periodically review[ing] the work of the courts, and [making] whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest." Braxton v. United States, 500 U.S. 344, 348 (1991). Circuit conflicts regarding Guidelines interpretation are thus not ordinarily a reason to grant certiorari. 4. Any disagreement concerning interpretation of the effective-date provision of the 1990 amendment to 8 U.S.C. 1101(a) (43) is, in any event, of diminishing significance in light of recent congressional action further amending Section 1101 (a) (43). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, Title III 321 and 322, 110 Stat. 1570, 1701-1703, enacted on September 30, 1996, amended the statutory definition of an aggravated felony in Section 1101 (a) (43). That amendment conclusively resolves the effective date questions with respect to all violations of 8 U.S.C. 1326 occurring after the date of enactment. Section 321 (a) of the IIRIRA broadens the definition of an aggravated felony in 8 U.S.C. 1101 (a) (43) to include any crime of violence for which "the term of imprisonment is at least one year." 8 U.S.C. 1101 (a) (43) (J). Sections 321 (b) and 321 (c) of the IIRIRA make explicit that the IIRIRA's definition of aggravated felony applies in the prosecution of all entries into the United States in violation of 8 U.S.C. 1326 that occur after the September 30, 1996, date of enactment, without regard to when ---------------------------------------- Page Break ---------------------------------------- 14 the prior aggravated felony conviction took place. Section 321 (b) adds the following sentence to the text of 8 U.S.C. 1101 (a) (43): Notwithstanding any other provision of law (including any effective date), the term [aggravated felony] applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph. IIRIRA, Section 321 (b), 110 Stat. 1702. The effective date provision in Section 321 (c) further provides: Effective Date -- The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred, and shall apply under Section 276 (b) of the Immigration and Nationality Act [codified at 8 U.S.C. 1326 (b)] only to violations of section 276 (a) [8 U.S.C. 1326 (a)] of such Act occurring on or after such date. IIRIRA, Section 321 (c), 110 Stat. 1702. In sum, Congress has amended Section 1101 (a) (43) to reject the Gomez-Rodriguez approach, thus rendering the issue petitioner raises irrelevant to all violations of Section 1326 occurring after September 30, 1996. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General WILLIAM C. BROWN Attorney APRIL 1997