U.S. v. Bustos De La Pava

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-1116,DEFENDANT-APPELLANT
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. ALEJANDRO BUSTOS DE LA PAVA,
• Court: U.S. Court of Appeals — Second Circuit

Page 157

268 F.3d 157 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. ALEJANDRO BUSTOS DE LA PAVA, DEFENDANT-APPELLANT.

Docket No. 00-1116

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: July 13, 2001

Decided October 15, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (Richard M. Berman, Judge) convicting defendant, following a plea of guilty, of illegally reentering the United States after having been deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). Defendant argues that (1) the indictment to which he pleaded guilty was defective because it did not contain an element of his offense-namely, that he was an "alien"; (2) he received ineffective assistance of counsel because his counsel in the District Court did not move to dismiss the indictment on the basis that the Government had failed to comply with the consular notification provision of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (ratified Nov. 24, 1969); and (3) the District Court erred in declining to depart downward from the otherwise applicable sentencing guideline.

Affirmed.

[Copyrighted Material Omitted]

Moira E. Casey, Douglaston, NY, for Appellant.

Roberto Finzi, Assistant United States Attorney (Elliott B. Jacobson, Assitant United States Attorney, of counsel; Mary Jo White, United States Attonrey, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.

Before: Cabranes, Pooler, and Sack, Circuit Judges.

Judge Sack concurs in a separate opinion.

Jose A. Cabranes, Circuit Judge.

Defendant Alejandro Bustos De La Pava appeals from a judgment of the United States District Court for the Southern District of New York (Richard M. Berman, Judge) convicting him, following his plea of guilty, of illegally reentering the United States after having been deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). On appeal, De La Pava argues that (1) the indictment to which he pleaded guilty was defective because it did not contain an element of his offense-namely, that he was an "alien"; (2) he received ineffective assistance of counsel because his counsel in the District Court did not move to dismiss the indictment on the basis that the Government had failed to comply with the consular notification provision of the Vienna Convention on Consular Relations ("Vienna Convention"), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, 1967 WL 18349 (ratified Nov. 24, 1969); and (3) the District Court erred in declining to depart downward from the otherwise applicable sentencing guideline.

For the reasons stated below, we find no merit in any of these arguments and therefore affirm the judgment of the District Court.

I.

The following facts are not in dispute. In 1984, De La Pava, a citizen of the Republic of Colombia, was sentenced to concurrent terms of imprisonment after two convictions relating to the possession and sale of cocaine. Following his release from prison, De La Pava was deported from the United States to Colombia in April 1993.

In September 1996, De La Pava was arrested in New York City, and convicted of criminal possession of a controlled substance in the third degree in the Supreme Court of the State of New York, New York County. Following his term of imprisonment for that conviction, the Immigration and Naturalization Service ("INS") arrested De La Pava, and counsel was assigned to him pursuant to the Criminal Justice Act.

On February 23, 1999, a federal grand jury returned a one-count indictment charging De La Pava with illegally reentering the United States after having been deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2).¹ The indictment read in pertinent part as follows:

From at least on or about September 26, 1996 up to and including on or about February 9, 1999, in the Southern District of New York and elsewhere, ALEJANDRO BUSTOS DE LA PAVA..., the defendant, unlawfully, willfully, and knowingly did enter, and was found in, the United States after having been deported from the United States subsequent to a conviction for the commission of an aggravated felony... and without having obtained the permission of the Attorney General of the United States to re-enter the United States.

Absent from the indictment was an explicit allegation that De La Pava was an "alien."

On July 8, 1999, De La Pava pleaded guilty to the charge in the indictment before Magistrate Judge James C. Francis IV. Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, Magistrate Judge Francis confirmed that De La Pava was competent to plead, and ensured that the plea was not the product of any force, threat or promises apart from the plea agreement and was the result of De La Pava's own free will.² At Magistrate Judge Francis's request, the Government also informed De La Pava of the elements of the offense that the Government would have to prove if the case went to trial. The Government informed De La Pava that it would have to show, among other things, that "the defendant is an alien." When asked by Judge Francis if he understood that "this is what the government would have to prove if [the case] went to trial," De La Pava answered, "Yes, your Honor."

Following De La Pava's plea of guilty, Judge Berman accepted the plea and then held a sentencing hearing on December 4, 1999. At the hearing, Judge Berman determined that De La Pava's adjusted offense level was 21 and that his Criminal History Category was IV, which, under the Sentencing Guidelines, resulted in a sentencing range of 57 to 71 months' imprisonment. See U.S.S.G. sentencing tbl.

De La Pava moved for a downward departure from the applicable sentencing range on the grounds that (1) his Criminal History Category of IV overstated the seriousness of his criminal record; and (2) there were unwarranted and systematic sentencing disparities for similarly-situated defendants in various federal district courts. Judge Berman noted, in response, that De La Pava's criminal record contained "an extensive listing of arrests and convictions of serious felony crimes," and explained that the sentencing disparities were the product of the appropriate exercise of prosecutorial discretion in particular cases. Accordingly, Judge Berman held that a downward departure was not warranted and sentenced De La Pava principally to imprisonment for 65 months and a term of three years of supervised release.

On appeal, De La Pava challenges his conviction and sentence on three grounds. He argues that (1) his indictment was defective because it did not contain the word "alien," an element of his offense of conviction; (2) he received ineffective assistance of counsel because his counsel in the District Court did not move to dismiss the indictment on the basis that the Government failed to comply with the consular notification provision in Article 36 of the Vienna Convention; and (3) the District Court erred in declining to depart downward from the Sentencing Guidelines. We write principally to address the first two arguments.

II.

A. Sufficiency of the Indictment

De La Pava argues that his conviction should be vacated because the indictment to which he pleaded guilty failed explicitly to mention an essential element of his offense-namely, that he was an "alien." The issue here is whether this omission constitutes a basis to vacate his conviction.

Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides that an "indictment... shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). An indictment must sufficiently inform the defendant of the charges against him and provide enough detail so that he may plead double jeopardy in a future prosecution based on the same set of events. See United States v. Goodwin, 141 F.3d 394, 401 (2d Cir. 1997). An indictment, however, need not be perfect, and common sense and reason are more important than technicalities. See id. at 401 ("[T]he precision and detail formerly demanded are no longer required, imperfections of form that are not prejudicial are disregarded, and common sense and reason prevail over technicalities." (quoting Charles Alan Wright, Federal Practice and Procedure: Criminal 2d § 123, at 347 (1982)).

The scrutiny given to an indictment depends, in part, on the timing of a defendant's objection to that indictment. See Goodwin, 141 F.3d at 401; United States v. Wydermyer, 51 F.3d 319, 324 (2d Cir. 1995). Where, for example, a defendant raises an objection after a verdict has been rendered, we have held that an indictment should be interpreted liberally, in favor of sufficiency. See Wydermyer, 51 F.3d at 324-25.

Here, De La Pava did not challenge the sufficiency of the indictment before he pleaded guilty or before judgment was entered. Moreover, De La Pava does not contend that he lacked notice of the elements of the charges against him. In these circumstances, we interpret the indictment liberally in favor of sufficiency, absent any prejudice to the defendant.

We conclude that the indictment, construed liberally, sufficiently alleged that De La Pava was an alien. The indictment stated that De La Pava, "without having obtained the permission of the Attorney General of the United States to re-enter the United States," unlawfully reentered and was "found" in the United States "after having been deported from the United States." A person cannot be deported from the United States unless he or she is an alien, and only an alien needs the permission of the Attorney General to re-enter the United States. See e.g., Ng Fung Ho v. White, 259 U.S. 276, 284 (1922) ("[J]urisdiction in the executive to order deportation exists only if the person arrested...