U.S. v. Baca-Valenzuela

• Decision Date: 07 July 1997
• Docket Number: No. 96-1420,BACA-VALENZUELA,96-1420
• Parties: UNITED STATES of America, Appellee, v. Alfredo, also known as Alfredo V. Baca, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1223

118 F.3d 1223

UNITED STATES of America, Appellee, v. Alfredo BACA-VALENZUELA, also known as Alfredo V. Baca, Appellant.

No. 96-1420.

United States Court of Appeals Eighth Circuit.

Submitted June 11, 1996.

Decided July 7, 1997.

Thomas M. Dawson (argued), Leavenworth, Kansas, for Appellant.

Carla B. Oppenheimer, Assistant U.S. Attorney (argued), Kansas City, Missouri, for Appellee.

Before MAGILL, Circuit Judge, ¹ HENLEY, Senior Circuit Judge, and DOTY, District Judge. ²

HENLEY, Senior Circuit Judge.

Alfredo Baca-Valenzuela was indicted on one count of illegally reentering the United States after being deported subsequent to conviction of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) & (b)(2). Baca-Valenzuela pleaded guilty and was sentenced by the district court ³ to 51 months in prison, three years supervised release, and a special assessment fine of $50.00. In his plea agreement, Baca-Valenzuela reserved the right to contest several rulings of the district court. On this appeal, Baca-Valenzuela raises four challenges to his conviction and sentence. Finding no merit to any of these challenges, we affirm.

Background

Consideration of the claims raised here requires a brief review of events surrounding Baca-Valenzuela's earlier federal conviction in 1987, his deportation from the United States in 1992, as well as the 1995 conviction and sentence from which the present appeal is taken.

Sometime in 1986 (or before) Baca-Valenzuela illegally entered the United States for the first time.

In April 1987, Baca-Valenzuela was convicted in the United States District Court for the District of Arizona for aiding and abetting the possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2. He was sentenced to ten years in prison.

In 1987, upon learning of the conviction, the Immigration and Naturalization Service (INS) issued to Baca-Valenzuela an Order to Show Cause (why Baca-Valenzuela should not be deported) and Notice of Hearing. The INS, however, took no further action on this Order to Show Cause.

At the time of the Arizona drug charge in 1987, conviction of a felony--such as the controlled substances offense for which Baca-Valenzuela was arrested--was a deportable offense. 8 U.S.C. § 1251(a)(4) (1987). Reentry into the United States after deportation carried a maximum penalty of two years in prison. 8 U.S.C. § 1326 (1987).

While Baca-Valenzuela was imprisoned, Congress passed statutes in 1988 and 1990 amending the relevant provisions on illegal reentry after deportation.

First, the Anti-Drug Abuse Act of 1988 (1988 Act) amended the Immigration and Nationality Act to provide for a new maximum penalty of 15 years in prison for an alien convicted of reentry after having been deported subsequent to commission of an "aggravated felony." Pub.L. No. 100-690, § 7345(b)(2), 102 Stat. 4181, 4471(1988), codified as amended at 8 U.S.C. § 1326(b) (1988).

The Act also added a provision which defined the new term "aggravated felony" as including "murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States." Pub.L. No. 100-690, § 7342, 102 Stat. 4181, 4469-70 (1988), codified as amended at 8 U.S.C. § 1101(a)(43)(1988).

Section 7345(b) of the 1988 Act provided that the amendments setting forth enhanced penalties for aliens who illegally reentered the United States after conviction of a felony or aggravated felony "shall apply to any alien who enters, attempts to enter, or is found in, the United States on or after the date of the enactment of this Act [November 18, 1988]." Pub.L. No. 100-690, § 7345(b), 102 Stat. 4181, 4471 (1988). However, the Act did not specifically address the question whether crimes committed before the effective date should be counted as aggravated felonies for purposes of the new enhanced penalties.

Second, in the Immigration Act of 1990 (1990 Act), Congress again addressed the deportation of aggravated felons and their punishment for illegal reentry. Section 602 of the 1990 Act amended 8 U.S.C. § 1251 to provide specifically that conviction of an aggravated felony was grounds for deportation. Pub.L. No. 101-649, § 620(a)(2)(A)(iii), 104 Stat. 4978, 5080(1990). However, by its terms, Section 602 of the 1990 Act did not apply to deportation proceedings for which notice was provided to the alien before March 1, 1991. Pub.L. No. 101-649, § 602(d), 104 Stat. 4978, 5082 (1990).

Section 501 of the 1990 Act also substantially expanded the definition of "aggravated felony" to include not only any drug trafficking crime under § 924(c)(2) but also "any illicit trafficking in any controlled substance (as defined in section 102 of the Controlled Substances Act" as well as certain other money laundering and violent offenses). Immigration Act of 1990, Pub.L. No. 101-649, § 501(a)(2), 104 Stat. 4978, 5048 (1990), codified as amended at 8 U.S.C. § 1101(a)(43) (1990). ⁴

The effective date provision in the 1990 Act stated that it would "apply to offenses committed on or after the date of the enactment of this Act [November 29, 1990]" except that the amendment expanding the definition of aggravated felony to include illicit trafficking in any controlled substance would "be effective as if included in the enactment of section 7342 of the Anti-Drug Abuse Act of 1988." Pub.L. No. 101-649, § 501(b), 104 Stat. 4978, 5048 (1990).

Thus, after the 1988 and 1990 amendments, a controlled substances offense, such as the one Baca-Valenzuela had been convicted of in 1987, was classified as an aggravated felony and the maximum penalty for illegal reentry into the United States after deportation for such an offense was increased from two to 15 years. ⁵

One additional change in law occurred while Baca-Valenzuela was imprisoned. Effective November 1, 1991, the United States Sentencing Commission amended Sentencing Guideline Section 2L1.2 by the addition of a new subsection (b)(2), providing for a 16 level increase in the base offense level of a defendant who illegally reentered the United States after having been previously deported following conviction of an aggravated felony. U.S.S.G. § 2L1.2(b)(2). ⁶

In 1992, as the date for Baca-Valenzuela's release from prison neared, the INS canceled its 1987 Order to Show Cause and substituted a new Order to Show Cause citing the enhanced penalties provided in the amended Immigration and Nationality Act for aliens convicted of an "aggravated felony." Then, upon his release from prison in 1992, Baca-Valenzuela was detained by the INS pending deportation. On October 14, 1992, an immigration judge ordered Baca-Valenzuela deported pursuant to Section 241(a)(2)(A)(iii) of the Immigration and Nationality Act due to his status as an alien with a prior conviction for an aggravated felony. 8 U.S.C. § 1251(a)(2)(A)(iii). Baca-Valenzuela did not file a direct appeal of the deportation order and was then deported.

In 1995, Baca-Valenzuela was arrested in Cooper County, Missouri, and charged under Missouri state law with possession of a controlled substance. On March 13, 1995, Baca-Valenzuela was convicted of that offense and fined $5000.00. That same day, Missouri officials turned him over to the custody of the INS.

On March 29, 1995, Baca-Valenzuela was indicted by a federal grand jury in the Western District of Missouri on one count of reentering the United States after having been deported subsequent to an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1) & (2) and (b)(2). ⁷

Baca-Valenzuela moved to dismiss the indictment. He raised several claims challenging the application of the Immigration and Nationality Act, as amended, to his conduct. The United States magistrate judge ⁸ rejected all challenges to the indictment. The district court adopted the recommendations of the magistrate judge and overruled the motion to dismiss the indictment. Baca-Valenzuela then pleaded guilty but reserved the right to pursue his legal challenges to the conviction and sentence on appeal.

On this appeal, Baca-Valenzuela raises four related challenges to his conviction and sentence for the illegal reentry offense. ⁹ First, Baca-Valenzuela contends that both his 1992 deportation and his 1995 conviction are invalid as a matter of statutory construction. He says that when he committed the underlying drug offense in 1987 that crime was not an "aggravated felony" and by its terms the 1990 statute did not intend retroactive application of the enhanced penalties for aggravated felonies. Second, appellant argues that, even assuming the 1990 statute meant to include in the expanded definition of "aggravated felony" crimes committed before its enactment, the statute as applied to him violates the ex post facto clause of the Constitution. Third, appellant urges that the 16 level upward enhancement of his sentence was invalid, because he was convicted only of "aiding and abetting" the drug offense rather than commission of the offense as a principal. Fourth, appellant claims that he was entitled to a downward departure in sentencing on grounds that the retroactive application of the sentence enhancement for prior conviction of an "aggravated felony" was not a factor the Sentencing Commission had taken into account when drafting the Sentencing Guidelines.

Analysis

Statutory Construction of the Aggravated Felony Provision

Baca-Valenzuela first contends that in drafting the Immigration and Nationality Act Congress did not intend to treat crimes committed before the 1988 and 1990 amendments as aggravated felonies for purposes of enhanced punishment. He argues that his 1987 drug offense was not an aggravated felony at the time of its commission or his conviction because no such category of offenses then existed....