U.S. v. Acevedo

• Citation: 229 F.3d 350
• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-1606
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. JULIO AMEZQUITO ACEVEDO, also known as Ramon Rodriguez, also known as Victor Gelarza, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 350

229 F.3d 350 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. JULIO AMEZQUITO ACEVEDO, also known as Ramon Rodriguez, also known as Victor Gelarza, Defendant-Appellant.

Docket No. 99-1606

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: May 26, 2000

Decided: August 25, 2000

Appeal from a judgment of the United States District Court for the Southern District of New York (Jones, J.), convicting defendant of illegally reentering the United States after deportation pursuant to 8 U.S.C. § 1326 and sentencing defendant to a term of fifty-seven months' imprisonment followed by three years of supervised release. Because we find that defendant, by presenting an invalid green card to immigration authorities, violated the "found in" provision of § 1326, and that the statute of limitations was triggered only when he was later discovered in the United States, we hold that the indictment was timely filed under 18 U.S.C. § 3282. We therefore conclude that defendant's claim that his trial counsel was ineffective for failing to raise a statute of limitations defense lacks merit. We also reject defendant's additional ineffective assistance of counsel claims, and his contention that the district court erred in denying his downward departure motions. We therefore uphold the district court's judgment in its entirety.

Affirmed.

[Copyrighted Material Omitted] BRUCE R. BRYAN, Syracuse, NY, for defendant- appellant.

MICHAEL S. KIM, Assistant United States Attorney (Mary Jo White, United States Attorney; Jay K. Musoff and Jamie L. Kogan, Assistant United States Attorneys, on the brief), Southern District of New York, New York, NY, for appellee.

Before: McLAUGHLIN and SOTOMAYOR, Circuit Judges, and RESTANI,^* Judge.

SOTOMAYOR, Circuit Judge:

Julio Amezquito Acevedo appeals from a judgment of conviction and sentence entered on October 26, 1999 by the United States District Court for the Southern District of New York (Jones, J.). Acevedo pled guilty to one count of illegally reentering the United States after being deported from the country following a conviction for an aggravated felony in violation of 8 U.S.C. §1326(a), (b)(2).

On appeal, Acevedo's principal argument is that his trial counsel was ineffective because he failed to raise a statute of limitations defense and to investigate adequately the facts and law relating to such a defense. Acevedo contends that his prosecution was time-barred under 18 U.S.C. §3282, because the indictment was filed more than five years after his reentry into the United States. Acevedo's ineffectiveness of counsel contention raises an issue not yet addressed by this Circuit: when the statute of limitations is triggered for the purposes of 8 U.S.C. §1326, where an illegal alien accomplishes reentry by providing an invalid green card and his real name to immigration authorities. Because we find that Acevedo's presentation of an invalid green card allowed him to achieve entry "by means of specious documentation that conceal[ed] the illegality of his presence," United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995), we hold that the statute of limitations was not triggered at the time he reentered the country, but rather at the time that he was "found in" the United States by immigration authorities. See id. at 282. We therefore conclude that the filing of the indictment approximately two-and-a-half years after Acevedo's discovery was timely. For this reason, trial counsel's alleged failure to raise or investigate further a statute of limitations defense could not have prejudiced Acevedo, and, therefore, his ineffective assistance claims on this ground fail. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that a defendant must show actual prejudice to succeed on an ineffective assistance of counsel claim).

Acevedo raises numerous other arguments on appeal, including that: (1) the district court erred in denying his downward departure motions based on the government's delay in commencing prosecution and transferring him to federal custody, and based on the ground that he saved the life of another inmate; (2) the district court's application of the 1998 version of the United States Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") rather than the 1991 version in determining his adjusted offense level constituted an ex post facto violation; and (3) his trial counsel provided ineffective assistance by (a) failing to raise a downward departure claim based on Acevedo's alleged mistaken belief that his reentry was not a crime; and (b) neglecting to bring the commentary to § 5G1.3(c) of the 1994 Guidelines to the attention of the district court, which, Acevedo claims, might have rendered the district court more receptive to his downward departure motions. Because we find that each of these claims is also without merit, we affirm the judgment of the district court.

BACKGROUND

Acevedo, a native of the Dominican Republic, first entered the United States in January 1984. In October 1985, Acevedo pled guilty to manslaughter in New York Supreme Court, New York County, and was sentenced in December 1985 to a term of six to eighteen years' imprisonment. In November 1990, he was deported to the Dominican Republic in connection with the manslaughter conviction. Acevedo apparently failed to surrender his green card to the Immigration and Naturalization Service ("INS") upon deportation, although such surrender is routinely required. See United States v. Gay, 7 F.3d 200, 200-01 (11th Cir. 1993); United States v. Almonte, No. 98 Cr. 666 (JFK), 1998 WL 782023, at *2 (S.D.N.Y. Nov. 6, 1998); Aliens and Nationality, 8 C.F.R. § 246.9 (2000) (requiring surrender of green card upon rescission of permanent resident status); id. § 247.14 (same).

Acevedo reentered the United States on June 6, 1991, at Miami International Airport, using his real name and presenting his invalid green card, his social security card, and his Dominican passport to the immigration authorities. In March 1993, he was arrested in New York County, although the circumstances of that arrest are unclear from the record. In April 1994, Acevedo was again arrested by New York State authorities after selling heroin to an undercover police officer. He pled guilty to attempted criminal sale of a controlled substance and, in March 1995, was sentenced to a term of three to six years' imprisonment.

Between May 1, 1995 and June 21, 1995, while Acevedo was serving his sentence, New York State's Department of Correctional Services sent three letters to the INS notifying the agency of Acevedo's incarceration, informing it of the possibility that Acevedo was an illegal alien, and inquiring whether it would be seeking Acevedo's deportation. On September 30, 1997, the United States Attorney for the Southern District of New York filed an indictment charging Acevedo with one count of illegally entering, attempting to enter, and being "found in, the United States subsequent to his conviction for the commission of an aggravated felony,...without having obtained the express consent of the Attorney General of the United States" in violation of 8 U.S.C. §1326(a), (b)(2).¹ Def.-Appellant's App. at 7 (Indictment, 97 Cr. [1028-1 (BSJ)]). Acevedo was transferred to federal custody on October 15, 1998.

Acevedo pled guilty as charged, without a plea agreement, in proceedings held before the district court on April 16, 1999 and May 19, 1999. In Acevedo's Presentence Investigation Report, the Probation Office determined that his adjusted offense level was 21, his Criminal History Category was IV, and his Guidelines sentencing range was thus fifty-seven to seventy-one months of imprisonment. At sentencing proceedings held on October 4, 1999, the district court adopted the Probation Office's proposed Guidelines range, and, after denying Acevedo's downward departure motions, imposed a prison sentence of fifty-seven months to run concurrently with the remainder of his state sentence, followed by three years' supervised release, and a mandatory assessment of $100. The district court imposed a sentence at the lower end of the Guidelines range in consideration of Acevedo's successful efforts to prevent another inmate's suicide. Judgment was entered on October 26, 1999, and this appeal followed.

DISCUSSION

I. Statute of Limitations

Acevedo contends on appeal that his prosecution was time-barred. As a result, he claims that his trial counsel was ineffective for failing to raise this defense before the district court and for neglecting to investigate adequately the implications of Acevedo's presentation of his real name to immigration authorities upon reentry.

The time for prosecuting violations of 8 U.S.C. §1326 is set forth in 18 U.S.C. §3282, which provides generally that "no person shall be prosecuted... for any offense, not capital, unless the indictment is found... within five years next after such offense shall have been committed." 18 U.S.C. §3282; see also Rivera-Ventura, 72 F.3d at 280 (2d Cir. 1995) (discussing applicability of §3282). The statute of limitations in criminal cases begins to run when the crime is "complete." Toussie v. United States, 397 U.S. 112, 115 (1970). An offense committed under §1326 is complete upon the occurrence of one of three events: the alien (1) enters; (2) attempts to enter; or (3) is "found in" the United States. 8 U.S.C. §1326(a)(2). Acevedo claims that the statute of limitations in his case was triggered when he "entered" or "attempted to enter" the United States on June 6, 1991, and that the September 30, 1997 indictment was time-barred under 18 U.S.C. §3282.

This Court has held that an alien commits the offense of being "found in" the United States if he enters the country "unlawfully after making a surreptitious border crossing that conceals his presence," or "enter[s] through a recognized port by means of specious documentation that conceals the illegality...