U.S. v. Amaya-Benitez

• Decision Date: 08 November 1995
• Docket Number: No. 1243,D,AMAYA-BENITE,1243
• Citation: 69 F.3d 1243
• Parties: UNITED STATES of America, Appellant, v. Israelefendant-Appellee. ocket 94-1489.
• Court: U.S. Court of Appeals — Second Circuit

Page 1243

69 F.3d 1243

UNITED STATES of America, Appellant, v. Israel AMAYA-BENITEZ, Defendant-Appellee.

No. 1243, Docket 94-1489.

United States Court of Appeals Second Circuit.

Argued April 12, 1995.

Decided Nov. 8, 1995.

George A. Yanthis, Assistant United States Attorney, Albany, NY (Thomas J. Maroney, United States Attorney for the Northern District of New York; Kimberly M. Zimmer, Assistant United States Attorney; Sara M. Lord, Assistant United States Attorney), for Appellant.

Kent J. Gebert, Schenectady, NY, for Defendant-Appellee.

Before: FEINBERG, WALKER, and CABRANES, Circuit Judges.

WALKER, Circuit Judge:

The principal issue presented in this case is whether a sentencing court may consider facts underlying a prior aggravated felony conviction that is the predicate for an enhanced sentence under U.S.S.G. Sec. 2L1.2(b)(2). In the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., District Judge ), defendant-appellee Israel Amaya-Benitez was convicted under 8 U.S.C. Sec. 1326(b) for illegally reentering the United States after being deported following a conviction for an aggravated felony. At sentencing, the district court increased the offense level by sixteen pursuant to U.S.S.G. Sec. 2L1.2(b)(2), but departed downward on the basis that the prior conviction overrepresented Amaya-Benitez's criminal behavior. The government appeals on the grounds that the court erred in failing to state specific reasons for the departure and in examining facts underlying the aggravated felony conviction.

BACKGROUND

In February 1983, Amaya-Benitez and two of his brothers abducted a young woman at gunpoint and raped her at knifepoint. The three were convicted of aggravated rape in Texas state court on May 31, 1983. Amaya-Benitez was sentenced to forty years imprisonment. On appeal, the convictions were reversed because there was conflicting alibi evidence and because all three defendants had been represented by the same counsel. Amaya v. Texas, 677 S.W.2d 159 (Tex.Ct.App.1984). Two years later, Amaya-Benitez pleaded nolo contendere to aggravated rape and received a sentence of five years imprisonment. Amaya-Benitez was released on parole, pursuant to Texas law, because he had served more than a quarter of his sentence.

In August 1985, Amaya-Benitez was deported to El Salvador. In November 1985, he illegally reentered the United States.

Within a year, after witnesses observed him and an accomplice slashing car tires, he was arrested in Washington, D.C. and charged in the District of Columbia Superior Court with possession of a deadly weapon. These charges were dropped in May 1987. Soon thereafter, Amaya-Benitez moved to Canada with his common-law wife and applied for political asylum. Once peace was restored in El Salvador, Amaya-Benitez was directed to leave Canada. On September 25, 1993, while en route to his native country and allegedly with no intent to stay in the United States, Amaya-Benitez once again illegally reentered the United States. When Border Patrol Agents discovered that Amaya-Benitez held an El Salvadoran passport, Amaya-Benitez admitted that he was an El Salvadoran citizen, that he had previously been deported from the United States, and that he was reentering the country illegally.

On October 6, 1993, a grand jury indicted Amaya-Benitez on two counts based upon his latest illegal reentry: (1) reentering the United States after being deported following a conviction for an aggravated felony, in violation of 8 U.S.C. Sec. 1326(a) and (b), and (2) entering the United States at a time and place "other than as designated by Immigration Officers" and eluding examination and inspection by immigration officers, in violation of 8 U.S.C. Sec. 1325(a). On April 5, 1994, the district court accepted Amaya-Benitez's plea of guilty to the first count.

At his sentencing hearing, Amaya-Benitez argued for a downward departure. He contended that the Immigration and Naturalization Service must have known of his first illegal reentry into the United States because of his 1986 arrest, yet it failed to prosecute him until the second illegal reentry. In the interim, however, the Sentencing Guidelines went into effect. Thus, he argued, he was subject to a harsher sentence by virtue of the delay in prosecution.

The government requested that Amaya-Benitez receive a full sixteen-level enhancement pursuant to U.S.S.G. Sec. 2L1.2(b)(2) because he had previously been convicted of a crime that constituted an aggravated felony. The district court expressed reservations as to the government's position because the rape conviction was eleven years old and Amaya-Benitez had served only two years in prison. Consequently, the court adjourned the sentencing to "take additional time to review those facts" and to determine whether the enhancement applied in this situation.

The records relating to Amaya-Benitez's rape conviction had been destroyed. Nevertheless, by talking to parties who had been involved in the appeal, the prosecutors and the probation office discovered and provided to the district court the following information: the rape victim had been convicted of prostitution, lewd dancing, and public intoxication; Amaya-Benitez's attorney thought that Amaya-Benitez would have been convicted on a lesser offense if he had been retried; the prosecutor, who did not remember the details of the case, thought Amaya-Benitez might have been offered a favorable disposition because the victim could not be located; and Amaya-Benitez's release from prison was in accord with Texas state law.

The sentencing hearing resumed one month later. Amaya-Benitez did not contest the application of the enhancement based on the aggravated felony. He did, however, reiterate his prior argument that by being prosecuted after the Guidelines were in effect, he faced a harsher penalty. The government continued to press for the full sixteen-level enhancement.

The district court concluded that the aggravated rape conviction constituted an aggravated felony and applied the sixteen-level enhancement requested by the government, increasing the offense level from five to twenty-one. The court then departed downward from twenty-one to eighteen reasoning that the aggravated felony presented "unique circumstances" because the rape conviction overrepresented Amaya-Benitez's past criminal behavior. The court went on to observe that

[t]he circumstances and the facts ... reflect a questionable basis for [defendant's] conviction, even though the conviction is a conviction. The questionable evidence present from that conviction and the fact that [defendant] pled and received time served when [his] conviction was initially reversed and remanded. So, in view of the The court later reiterated its belief that Amaya-Benitez's "prior aggravated felony [did] not fairly represent [his] criminal behavior." Thus, Amaya-Benitez received a sentence of thirty months imprisonment, to be followed by two years of supervised release. The government appeals from the downward departure.

circumstances, ... I believe there is an overrepresentation of ... [defendant's] prior criminal behavior in that regard.

DISCUSSION

The government challenges Amaya-Benitez's sentence on two grounds: 1) the district court did not state specific reasons for the downward departure as required by 18 U.S.C. Sec. 3553(c)(2); and 2) in deciding to depart, the district court improperly reviewed the facts underlying Amaya-Benitez's aggravated rape conviction. We review a district court's determination that a factor warrants a downward departure de novo and review for clear error the court's conclusion that such a factor is present. See United States v. Haynes, 985 F.2d 65, 68 (2d Cir.1993).

A court may depart from a guideline range when it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. Sec. 3553(b). The Guidelines offer a list of factors that might warrant departure, see U.S.S.G. Sec. 5K2.1-16, but district courts have discretion to consider additional factors, see U.S.S.G. Sec. 5K2.0; see also Haynes, 985 F.2d at 68. In departing, however, the district court must state "the specific reason for the imposition of a sentence different from that described" by the Guidelines. 18 U.S.C. Sec. 3553(c)(2); see also United States v. Butler, 954 F.2d 114, 121 (2d Cir.1992) ("Congress has expressed its intent, in no uncertain terms, that when a sentencing court departs from the applicable guideline range, that departure must be justified by specific reasons.").

The district court explained that it departed because "unique circumstances ... exist[ed] in factoring in the prior conviction of an aggravated felony," "the prior aggravated felony conviction overrepresent[ed defendant's] past criminal behavior," there was "a questionable basis for [defendant's] conviction," and Amaya-Benitez's five year sentence "ended up being a two year sentence." We find these explanations too vague and general to constitute the sort of specific reasons that are required to justify a departure. For example, the district court never clarified why the conviction was questionable, or why the offense level mandated by the Guidelines "overrepresented" the seriousness of Amaya-Benitez's criminal history. Nor did the district court relate the circumstances upon which it was relying. We are therefore unable to determine whether they were "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines."

We conclude that the district court erred in failing to articulate in specific terms the reasons for its downward departure. While the district court offered no specific reason for departing from the guidelines, its explanation suggested that the departure was influenced by its perception that the rape...