U.S. v. Aparco-Centeno, 00-1889.

• Decision Date: 14 February 2002
• Docket Number: No. 00-1889.,00-1889.
• Citation: 280 F.3d 1084
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Javier APARCO-CENTENO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

280 F.3d 1084

UNITED STATES of America, Plaintiff-Appellee, v. Javier APARCO-CENTENO, Defendant-Appellant.

No. 00-1889.

United States Court of Appeals, Sixth Circuit.

Argued November 14, 2001.

Decided and Filed February 14, 2002.

William K. Holmes, Warner, Norcross & Judd, Grand Rapids, MI, John W. Zeiger (briefed), Marion H. Little, Jr. (argued and briefed), Zeiger & Carpenter, Columbus, OH, for Plaintiff-Appellant.

Anthony V. Trogan, Jr. (briefed), Anthony V. Trogan P.L.L.C., West Bloomfield, MI, for Defendants-Appellees.

Before: KEITH and COLE, Circuit Judges; MARBLEY, District Judge.^*

OPINION

COLE, Circuit Judge.

This action stems from a criminal defendant's appeal of a district court's determination of his sentence for violating 8 U.S.C. § 1326, re-entry of a deported alien. Defendant-Appellant Javier Aparco-Centeno argues that his sentence of seventy-seven months is inaccurate because his prior convictions should not have qualified as aggravated felonies under 8 U.S.C. § 1326(b)(2) (1994) and § 2L1.2 of the U.S. Sentencing Guidelines Manual (1994) ("U.S.S.G."), and that the prior conviction used to enhance his sentence was required to be proved beyond a reasonable doubt. In sentencing Aparco-Centeno to seventy-seven months, the district court determined that the presentence investigation report ("PSR") set the appropriate sentencing guideline at seventy-seven to ninety months and accurately took into account Aparco-Centeno's prior felonies. This appeal presents two issues for our review: (a) whether Aparco-Centeno's prior convictions qualify as aggravated felonies so that his sentence may be increased under 8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2; and (b) whether the prior conviction used to enhance Aparco-Centeno's sentence was required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to be proved beyond a reasonable doubt. We conclude that Aparco-Centeno has waived the first issue of whether his prior convictions qualify as aggravated felonies under 8 U.S.C. § 1326 and U.S.S.G. § 2L1.2. Moreover, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1995), establishes an exception to Apprendi so that the prior conviction used to enhance Aparco-Centeno's sentence is not required to be proved beyond a reasonable doubt. Accordingly, we AFFIRM the judgment of the district court.

I. BACKGROUND

On September 11, 1999, Aparco-Centeno was stopped by police near the Canadian National/Grand Trunk railroad tunnel in Port Huron, Michigan for entry without having obtained express consent of the Attorney General to reenter the United States after his previous deportation. He was indicted on December 1, 1999, under 8 U.S.C. § 1326 for reentering the country as a deported alien. 8 U.S.C. § 1326 provides:

(a) Subject to subsection (b) of this section, any alien who — (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attempts to enter ... the United States ... shall be fined under Title 18, or imprisoned not more than two years, or both. (b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection ... (2) 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. (emphasis added).

The United States filed a notice of sentencing enhancement based upon two of Aparco-Centeno's prior convictions that allegedly qualify as aggravated felonies under 8 U.S.C. § 1326. Pursuant to this enhancement, the United States determined that Aparco-Centeno was subject to a maximum of twenty years under 8 U.S.C. § 1326(b)(2).

The parties negotiated a Fed.R.Crim.P. 11 agreement in which Aparco-Centeno stipulated to the prior aggravated felony and the maximum sentence of twenty years incarceration for violation of 8 U.S.C. § 1326. The plea agreement further provided that neither party would seek a departure from the guidelines for any reason not stated in the agreement itself. During the hearing, the district court questioned the parties regarding the intent and meaning of this provision. The United States argued that, "the language itself underscores the government's ability to withdraw from the agreement if, in fact, a ground for departure is asserted at sentencing which pre-existed the agreement, but has not been discussed and not incorporated in the agreement." The district court determined it would still be appropriate to raise issues "in the [PSR] that would impact the range that have not been identified." Aparco-Centeno then pleaded guilty to violation of 8 U.S.C. § 1326. During the hearing, Aparco-Centeno was never questioned about a prior aggravated felony as defined in 8 U.S.C. § 1326(b)(2). Approximately four months after this plea, Aparco-Centeno filed a motion for downward departure based upon (1) cultural assimilation and (2) over-representation of the underlying felony. The United States responded to this motion with a notice of withdrawal from the Rule 11 plea agreement.

The PSR set Aparco-Centeno's statutory guideline at seventy-seven to ninety months with a total offense level of 21 and a criminal history category of VI. The report considered two of Aparco-Centeno's prior convictions as aggravated felonies under 8 U.S.C. § 1326. The first was for receiving stolen property, for which he was sentenced to three years of probation. Aparco-Centeno later violated the terms of his probation, causing it to be revoked and a prison term of sixteen months imposed. Aparco-Centeno's second conviction was grand theft from a person, for which he was sentenced to one year custody and three years of probation.

Aparco-Centeno maintained his plea in the sentencing hearing, and was sentenced to seventy-seven months incarceration. The district court also recommended immediate deportation or three years of supervised release following Aparco-Centeno's release. This appeal of the district court's determination of the computation of his sentence follows.

II. DISCUSSION

A. STANDARD OF REVIEW

We review a district court's determination for plain error where the defendant failed to make an objection. United States v. Page, 232 F.3d 536, 543 (6th Cir.2000); Fed.R.Crim.P. 52(b). We cannot correct that error unless it is "`plain' or `clear' under current law and [] affects substantial rights." Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

B. ANALYSIS

Both the statutory sentence and the sentencing guidelines turn upon a threshold finding that the defendant committed a prior aggravated felony. See 8 U.S.C. § 1326(b)(2) (1994); U.S.S.G. § 2L1.2 (1994). Section 1326(b)(2) states that for an alien "whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined . . ., imprisoned not more than 20 years, or both." 8 U.S.C. § 1326(b)(2). If an individual doesn't qualify as an aggravated felon, the maximum statutory sentence is two years. 8 U.S.C. § 1326(a). A prior "aggravated felony" includes any federal, state or local offense punishable by imprisonment for a term exceeding one year. See United States v. Echavarria-Escobar, 270 F.3d 1265, 1270 (9th Cir.2001).

1. Interpreting "aggravated felony" in 8 U.S.C. § 1326(b)

Aparco-Centeno challenges the district court's determination that the PSR set the appropriate sentencing guideline at seventy-seven to ninety months and accurately took into account his prior felonies. He argues that neither of his two prior convictions should qualify as prior aggravated felonies under 8 U.S.C. § 1326 — that the first conviction is ineligible because he only was sentenced to probation (although that probation was later revoked and a sixteen-month term of imprisonment imposed); and that the second conviction is ineligible because it was not named in the indictment and was only a misdemeanor under state law (although an aggravated felony under 8 U.S.C. § 1101(a)(43)(G)). While resolving whether Aparco-Centeno's prior convictions fit the 8 U.S.C. § 1326 definition of a prior aggravated felony presents several questions of first impression for this circuit, we need not address them because Aparco-Centeno has waived this issue in the court below.

At the sentencing hearing, Aparco-Centeno's counsel had no objection to the PSR and the two prior convictions as listed there. He also stated in his sentencing memorandum and motion for downward departure that "[b]ecause Mr. Aparco-Centeno's sentences for two of these offences were at least one year in duration, they are classified as aggravated felonies under 8 U.S.C. § 1101(a)(43)." Not only did Aparco-Centeno not object to the district court's consideration of the two prior convictions as aggravated felonies under 8 U.S.C. § 1326, he explicitly agreed that they qualified as such. Only on appeal does Aparco-Centeno argue that his conviction for receiving stolen property does not qualify as an aggravated felony under 8 U.S.C. § 1326.

A defendant challenging the application of the sentencing guidelines "must first present the claim in the district court before [it] can be entertain[ed] on appeal." United States v. Nagi, 947 F.2d 211, 213 (6th Cir.1991). Waiver is the "intentional relinquishment or abandonment of a known right," and these rights are not reviewable. See United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Although we do not foreclose appellate review for plain error "when the interests of justice demand otherwise," see United States v. Finley, 8 Fed.Appx. 557, 558, 2001 WL 493378 (6th Cir.2001), we agree with the court in United States v. Sloman that "[a]n attorney cannot agree in open court with a judge's proposed course of conduct and then charge the court with error in following that course." 909 F.2d 176, 182 (6th Cir.1990). This is exactly the course that...