U.S. v. Crawford

Decision Date15 March 1994
Docket NumberNo. 93-5282,93-5282
Citation18 F.3d 1173
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Casy Andrew CRAWFORD, a/k/a Casey Andrew Crawford, a/k/a Andrew C. Crawford, a/k/a Sean Wilson, a/k/a Jason Johnson, a/k/a Casey Crawford, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Henry Kowalchick, Norfolk, VA, for appellant. Alan Mark Salsbury, Asst. U.S. Atty., Norfolk, VA, for appellee. ON BRIEF: Kenneth E. Melson, U.S. Atty., Norfolk, VA, for appellee.

Before HAMILTON and WILLIAMS, Circuit Judges, and OSTEEN, United States District Judge for the Middle District of North Carolina, sitting by designation.

OPINION

HAMILTON, Circuit Judge:

This appeal presents three principal issues. The first and most salient is whether 8 U.S.C. Sec. 1326(b) is a separate criminal offense or a sentence enhancement provision. The second is whether, in calculating a defendant's sentence, the use of a prior aggravated felony conviction to enhance a defendant's base offense level by sixteen levels pursuant to United States Sentencing Commission, Guidelines Manual, Sec. 2L1.2(b)(2) and the use of the same prior aggravated felony conviction to assess six criminal history points pursuant to U.S.S.G. Sec. 4A1.1(a) (three points), U.S.S.G. Sec. 4A1.1(d) (two points), and U.S.S.G. Sec. 4A1.1(e) (one point), amounts to impermissible "double counting." The third issue, which is related to the second, is whether the use of the same prior aggravated felony conviction to assess six criminal history points pursuant to U.S.S.G. Sec. 4A1.1(a), U.S.S.G. Sec. 4A1.1(d), and U.S.S.G. Sec. 4A1.1(e) amounts to impermissible "triple counting." In a published opinion, the district court held that Sec. 1326(b) is a sentence enhancement provision and rejected the "double counting" and "triple counting" arguments. United States v. Crawford, 815 F.Supp. 920 (E.D.Va.1993). We now affirm.

I

The relevant facts of this appeal are not in dispute. On November 15, 1990, Casy Andrew Crawford, a Jamaican national, was convicted in Virginia state court of possession with intent to distribute cocaine, an aggravated felony, see 8 U.S.C. Sec. 1101(a)(43). Crawford was sentenced to ten years' imprisonment. In December 1991, Crawford was paroled by local authorities to the Newport News Pre-Release Program. Two days later, Crawford fled. In January 1992, agents of the United States Immigration and Naturalization Service arrested Crawford in Portsmouth, Virginia and deported him two weeks later.

In April 1992, Crawford reentered the United States sub rosa. He was eventually arrested in July 1992 and charged in a one count indictment with unauthorized reentry into the United States by a previously deported alien in violation of 8 U.S.C. Sec. 1326. 1 At trial, the jury was instructed in the following manner:

First, that the defendant was an alien at the time alleged in the indictment; [s]econd, that the defendant previously had been arrested and deported from the United States; [t]hird, ... that thereafter the defendant unlawfully entered or was found unlawfully present in the United States; and [f]ourth, that the defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of the defendant's previous deportation.

(J.A. 58). 2 The jury convicted Crawford and the case proceeded to sentencing. The district court calculated Crawford's offense level to be twenty-two. Crawford's offense level consisted of a base offense level of eight, U.S.S.G. Sec. 2L1.2(a), and a sixteen level enhancement because Crawford "was deported after a conviction for an aggravated felony," U.S.S.G. Sec. 2L1.2(b)(2). 3 The district court reduced Crawford's offense level by two levels for acceptance of responsibility, see U.S.S.G. Sec. 3E1.1, resulting in a final offense level of twenty-two.

The district court calculated Crawford's criminal history points to be twelve, resulting in a criminal history category of V. Notably, Crawford's November 1990 aggravated felony conviction accounted for six of his twelve criminal history points. Crawford received three points because the sentence Crawford received for his November 1990 aggravated felony conviction "exceed[ed] one year and one month," U.S.S.G. Sec. 4A1.1(a); two points because the Sec. 1326 violation was committed while Crawford was on probation for the November 1990 aggravated felony, U.S.S.G. Sec. 4A1.1(d); and one point because the Sec. 1326 offense was committed less than two years after his release from imprisonment on the November 1990 aggravated felony and because two points were awarded under U.S.S.G. Sec. 4A1.1(d). U.S.S.G. Sec. 4A1.1(e).

Based on an offense level of twenty-two and a criminal history category of V, Crawford's guidelines sentencing range was seventy-seven to ninety-six months. The district court sentenced Crawford to seventy-seven months' imprisonment. Crawford now appeals.

II

Crawford contends that, because he "was indicted, tried by a jury and convicted of a violation of Title 8, Section 1326(a) of the United States Code which carries a maximum penalty of two years imprisonment," Appellant's Brief at 14-15, the district court erred in sentencing him to seventy-seven months' imprisonment pursuant to 8 U.S.C. Sec. 1326(b)(2), which carries a maximum of fifteen years' imprisonment. Asserting that Sec. 1326(b) is not a sentence enhancement provision, but rather a separate criminal offense, Crawford argues that the district court could not sentence him under Sec. 1326(b)(2) unless the government charged his prior aggravated felony conviction in his indictment and proved that offense beyond a reasonable doubt at trial.

The government responds to Crawford's position by asserting that Sec. 1326(b) is a sentence enhancement provision and, therefore, not an element that it was required to charge in Crawford's indictment. Because the district court was satisfied by a preponderance of evidence that Crawford's "deportation was subsequent to a conviction for [the] commission of an aggravated felony," 8 U.S.C. Sec. 1326(b)(2), see also U.S.S.G. Sec. 2L1.2(b)(2), the government argues that the district court correctly enhanced Crawford's sentence.

The issue of whether subsection (b) of Sec. 1326 defines a separate criminal offense or creates a sentence enhancement provision is an issue of first impression for this circuit. Prior to a 1988 amendment, 8 U.S.C. Sec. 1326 read as follows:

Sec. 1326. Reentry of deported alien

Any alien who--

(1) has been arrested and deported or excluded and deported, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,

shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both.

In 1988 and 1990, 8 U.S.C. Sec. 1326 was amended 4 and now reads as follows:

Sec. 1326. Reentry of deported alien; criminal penalties for reentry of certain deported aliens

(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, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,

shall be fined under Title 18, or imprisoned not more than 2 years, or both.

(b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection--

(1) whose deportation was subsequent to a conviction for commission of a felony (other than an aggravated felony), such alien shall be fined under Title 18, imprisoned not more than 5 years, or both; or

(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 15 years, or both. 5

Our task here is to discern whether the 1988 amendment created a new separate offense under subsection (b) or merely created a sentence enhancement for those aliens who violate subsection (a). We believe that the plain language of subsection (b) suggests that it is a sentence enhancement provision. By its plain language, subsection (a) defines the offense of reentering the United States by a previously deported alien and subjects a transgressor to a two-year maximum sentence. Subsection (a), however, expressly provides that it is "[s]ubject to subsection (b)." By its plain language, subsection (b) applies stiffer penalties to certain classes of aliens, and its penalty provisions apply "[n]otwithstanding" the penalty delineated in subsection (a).

Crawford argues that subsection (b) incorporates the elements of subsection (a) and adds an additional element, either conviction of a felony, subsection (b)(1), or conviction of an aggravated felony, subsection (b)(2), to create a new and separate offense. We believe this argument founders on the fact that "[i]t is highly unlikely that Congress would structure the statute in such a way that subsection (b) is dependant on elements of subsection (a), if it intended for subsection (b) to be a separate criminal...

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