U.S. v. Gomez-Rodriguez
| Citation | 77 F.3d 1150 |
| Decision Date | 21 February 1996 |
| Docket Number | GOMEZ-RODRIGUE,D,No. 95-10114,95-10114 |
| Parties | 96 Cal. Daily Op. Serv. 1135, 96 Daily Journal D.A.R. 1927 UNITED STATES of America, Plaintiff-Appellant, v. Hector Reneefendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Appeal from the United States District Court for the Northern District of California.
Nandor J. Vadas, Assistant United States Attorney, San Francisco, California, for plaintiff/appellant.
George J. Cotsirilos, Jr., Cotsirilos & Campisano, San Francisco, California, for defendant/appellee.
Before: LAY, * GOODWIN, and PREGERSON, Circuit Judges.
Opinion by Judge PREGERSON; Dissent by Judge GOODWIN.
The United States appeals the district court's dismissal of an indictment charging Hector Rene Gomez-Rodriguez ("Gomez") with illegal reentry after deportation and conviction of an "aggravated felony" under 8 U.S.C. § 1326(b)(2) of the Immigration and Nationality Act. The district court dismissed the indictment because Gomez's "aggravated felony" conviction occurred before November 29, 1990, the date on which Congress added crimes of violence to the definition of "aggravated felony" under 8 U.S.C. § 1101(a)(43). Immigration Act of 1990 (the "1990 Amendment"), Pub.L. No. 101-649, 104 Stat. 4978 (1990). The 1990 Amendment contained an effective date provision, which provides, in relevant part, that the "Amendments ... shall apply to offenses committed on or after the date of the enactment." Id., § 501(b), 104 Stat. 5048. The 1990 Amendment was enacted on November 29, 1990.
In this appeal, we address whether the district court was correct in construing the effective date provision in the 1990 Amendment as barring the retroactive application of the expanded definition of "aggravated felony" to convictions for crimes of violence that occurred before November 29, 1990. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Gomez is a Mexican national. On October 26, 1990, Gomez plead guilty in California Superior Court to violating California Penal Code § 245(a)(2), assault with a deadly weapon. The charged assault occurred on March 16, 1990. The state court sentenced Gomez to one year in jail and a term of probation. On August 20, 1991, Gomez's probation was revoked and he was sentenced to five years in state prison. On November 29, 1993, after Gomez served his sentence, Immigration and Naturalization Service (INS) officials deported him from the United States.
After his deportation, Gomez reentered the United States. INS agents arrested Gomez on September 22, 1994. The government charged Gomez with illegal reentry under 8 U.S.C. § 1326(b)(2).
Gomez moved to dismiss the indictment. He argued that his assault conviction did not qualify as an aggravated felony under § 1326(b)(2) because his crime occurred before November 29, 1990, the effective date of the Act's 1990 amendments. 1 In opposing Gomez's motion, the government argued that the term "offenses" in the effective date provision referred to the illegal reentry statute rather than the aggravated felony conviction. According to the government, the indictment was proper because the offense of illegal reentry occurred on or after November 29, 1990.
On February 23, 1995, the district court dismissed the indictment. The district court held that the 1990 Amendment's effective date provision is a clear expression of congressional intent, and that the expanded definition of "aggravated felony" could not be applied retroactively to crimes of violence which were committed before November 29, 1990. The district court concluded that, because Gomez was convicted of assault before November 29, 1990, this conviction did not qualify as an aggravated felony under 8 U.S.C. § 1326(b)(2). The district court's opinion is published at 878 F.Supp. 157 (N.D.Cal.1995).
"The interpretation of a statute is a question of law reviewed de novo." Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 783 (9th Cir.1995). Because the district court dismissed the indictment based on its construction of the 1990 Amendment, our review is de novo.
Section 1326(b)(2), the provision under which Gomez was charged, was first added to the illegal reentry statute in 1988, when Congress enacted the Anti-Drug Abuse Act of 1988 (the "1988 Act"), Pub.L. No. 100-690, § 7342, 102 Stat. 4181 (1988). U.S. v. Andrino-Carillo, 63 F.3d 922, 925 (9th Cir.1995). Section 1326(b)(2) currently provides, in relevant part, that an alien "whose deportation was subsequent to a conviction for commission of an aggravated felony ... shall be fined under such Title, imprisoned not more than 20 years, or both." 8 U.S.C. § 1326(b)(2).
Congress defined the term "aggravated felony" at 8 U.S.C. § 1101(a)(43). In 1988, before the 1990 Amendment, § 1101(a)(43) provided:
The term "aggravated felony" means 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 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. at 4469-4470. The 1988 Act did not contain an effective date provision. 2
In 1990, as part of the Immigration Act of 1990, Congress amended 8 U.S.C. § 1101(a)(43) to expand the definition of "aggravated felony" to include crimes of violence that have a minimum sentence of 5 years. The statute, as amended, states in relevant part:
(a) In General. -- Paragraph (43) of section 101(a) (8 U.S.C. 1101(a)) is amended--
....
(3) by inserting after "such title," the following: "any offense described in section 1956 of title 18, United States Code (), or any crime of violence (as defined in section 16 of title 18, United States Code, not including purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years",
....
Pub.L. No. 101-649, § 501(a), 104 Stat. at 5048 (emphasis added).
The 1990 Amendment also contained the following effective date provision (b) Effective Date.--The amendments made by subsection (a) shall apply to offenses committed on or after the date of the enactment of this Act, except that the amendments made by paragraphs (2) and (5) of subsection (a) shall be effective as if included in the enactment of section 7342 of the Anti-Drug Abuse Act of 1988.
Id., § 501(b), 104 Stat. at 5048. The 1990 Amendment was enacted on November 29, 1990.
The plain language of the effective date provision makes clear that Congress intended that its expanded definition of "aggravated felony"--which for the first time included crimes of violence--was to be applied only if such crimes were committed on or after November 29, 1990. Congress stated that the "amendments made by subsection (a)" apply only to "offenses committed on or after" the effective date of the 1990 Amendment. Subsection (a) lists the offenses which Congress was adding to the definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43). Had Congress intended the word "offenses" in the effective date provision to refer only to illegal reentry Congress either would have stated that it was amending the definition of aggravated felony only as it applied to illegal reentry or would have included the effective date provision within the illegal reentry statute itself.
Our interpretation of the 1990 Amendment's effective date provision is further supported by careful examination of 8 U.S.C. § 1101, the statute where Congress placed the definition of "aggravated felony." As the district court noted, section 1101 is the general definition section for all of Chapter 12 in Title 8. The "aggravated felony" definition applies not only to the illegal reentry statute but also to other substantive sections throughout Chapter 12, which include, among others, section 1105a (), section 1158 (asylum procedures), and section 1182 ().
It, therefore, makes no sense to interpret the word "offenses" in the effective date provision as referring only to the "offense" of illegal reentry. For us to interpret the effective date provision as referring only to the illegal reentry statute would mean that the 1990 Amendment's expanded definition of "aggravated felony" does not apply to those substantive sections in Chapter 12 which also refer to the term "aggravated felony." Such an interpretation would be contrary to Congress' stated intent that the definition of "aggravated felony" applies to all sections in Chapter 12 which use the term "aggravated felony." See 8 U.S.C. § 1101(a).
The government, however, argues that two recent Ninth Circuit decisions, United States v. Ullyses-Salazar, 28 F.3d 932, 938 (9th Cir.1994) and United States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.1994), compel an opposite result. Relying on these two cases, the government argues that crimes of violence that occurred before the effective date of the 1990 Amendment fall within the definition of "aggravated felony" for purposes of the illegal reentry statute. Both Ullyses-Salazar and Arzate-Nunez, however, are inapposite.
In Arzate-Nunez, which we decided before Ullyses-Salazar, we held that a defendant's illegal reentry conviction did not violate the ex post facto clause, U.S. Const., art. I, § 9, cl. 3, even though the defendant committed the aggravated felony before the 1988 Act added the term "aggravated felony" to the illegal reentry statute. 18 F.3d at 734. We explained that
[f]or purposes of analyzing repeat offender statutes and statutes increasing penalties for future crimes based on past crimes, the relevant "offense" is the current crime, not the predicate crime.
Arzate-Nunez, however, was decided under the 1988...
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