U.S. v. Campbell, 95-5432

• Citation: 94 F.3d 125
• Decision Date: 23 August 1996
• Docket Number: No. 95-5432,95-5432
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David A. CAMPBELL, a/k/a Bruce M. Franklin, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 125

94 F.3d 125

UNITED STATES of America, Plaintiff-Appellee, v. David A. CAMPBELL, a/k/a Bruce M. Franklin, Defendant-Appellant.

No. 95-5432.

United States Court of Appeals Fourth Circuit.

Argued May 10, 1996.

Decided Aug. 23, 1996.

ARGUED: Jeffrey Earl Risberg, Assistant Federal Public Defender, Baltimore, Maryland, for Appellant. Kathleen O'Connell Gavin, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James K. Bredar, Federal Public Defender, Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney, Joseph H. Young, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Before RUSSELL and LUTTIG, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge CHAPMAN wrote the opinion, in which Judge RUSSELL and Judge LUTTIG concurred.

OPINION

CHAPMAN, Senior Circuit Judge:

Appellant, David A. Campbell, entered a plea of guilty to unlawfully reentering the United States after being deported, in violation of 8 U.S.C. § 1326. Prior to sentencing, the government filed timely notice that Campbell was subject to the enhanced penalty provisions of 8 U.S.C. § 1326(b)(2) and Sentencing Guidelines § 2L1.2(b)(2) because of his prior conviction for an aggravated felony (manslaughter). On May 12, 1995, the district court sentenced Campbell to 77 months imprisonment and found that the manslaughter conviction was a crime of violence and included in the definition of "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F). Campbell appeals and argues that his underlying aggravated felony conviction occurred in August 1989 and was prior to the effective date, November 29, 1990, of the amendment that expanded the definition of "aggravated felony" to include crimes of violence, and thereby his prior manslaughter conviction. He contends that the amendment changing the definition of aggravated felony is not retroactive and cannot be applied to convictions prior to November 29, 1990. We find no merit to his position, and we affirm.

I.

There is no dispute as to the facts. Campbell is a citizen of Jamaica, and he entered the United States legally in 1980. He was deported from the United States to Jamaica on July 9, 1991, subsequent to his conviction in the Circuit Court of Baltimore City of manslaughter on or about August 4, 1989, for which he received a sentence of eight years.

In December 1994, Campbell was arrested in Baltimore. At that time, he possessed a New Jersey identification card bearing his photograph and the name "Bruce M. Franklin." Subsequent fingerprint comparisons revealed his true identity, and further investigation disclosed that he had previously been deported and had reentered the United States without the Attorney General's authorization as required by law.

Appellant was indicted for unlawful reentry after deportation in violation of 8 U.S.C. § 1326 and entered into a plea agreement with the United States. In the plea agreement, both parties stipulated that the Sentencing Guidelines in effect as of November 1, 1994 applied, that the base offense level was 8, and that Appellant should be given a 3 point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 if his adjusted offense level was 16 or higher, and a 2 point reduction if the base offense level was under 16.

The parties could not agree as to the applicability of the 16 level increase pursuant to U.S.S.G. § 2L1.2(b) based upon his unlawful reentry after being deported following his conviction of an aggravated felony. At sentencing, the district court found that the 16 level enhancement was appropriate because the amendment to the definition of aggravated felony was to be applied at the time of Campbell's arrest for reentry. This resulted in an adjusted base offense level of 21, after the 3 level reduction for acceptance of responsibility. The appellant had a bad prior criminal record and this produced a Category IV with a guideline range of 77--96 months. Under the plea agreement, the government agreed to recommend the low end of the guideline range, and the court imposed a sentence of 77 months. Campbell appeals and we affirm.

II.

We review the district court's imposition of the 16 level increase de novo because it involves interpretation of a statute and this presents a question of law. United States v. Jones, 31 F.3d 1304, 1315 (4th Cir.1994).

Campbell's manslaughter conviction occurred in August 1989 and precipitated his deportation in 1991. Thereafter, he illegally reentered this country and was arrested in December 1994. His prior manslaughter conviction is an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(F) as amended in 1990. The issue presented here is whether Congress intended 8 U.S.C. § 1326(b)(2), which incorporates § 1101(a)(43)(F), to apply retroactively to a defendant convicted and deported prior to the amendments to § 1101(a)(43) made by the Immigration Act of 1990, which include the expanded definition of "aggravated felony" so as to include the manslaughter conviction.

In the Anti-Drug Abuse Act of 1988, the term "aggravated felony" did not include manslaughter. However, the Immigration Act of 1990 amended the definition to include "crimes of violence," as defined in 18 U.S.C. § 16, which would include manslaughter. The amendments also provide that they "shall apply to offenses committed on or after the date of the enactment of this Act." Pub.L. No. 101-649, § 501(b), 104 Stat. 4978, 5048.

In 1991, the Sentencing Guidelines were amended to reflect the increased penalties for conviction of illegal entry by a deported alien, and a 16 point upward adjustment was added to the base offense level of defendants who had been deported after being convicted of an aggravated felony.

In United States v. Garcia-Rico, 46 F.3d 8 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2596, 132 L.Ed.2d 843 (1995), a case of almost identical facts, the court held that the amended definition of § 1101(a)(43) applied to offenses committed on or after November 29, 1990 and that the relevant offense is the illegal reentry into...