U.S. v. Grullon

• Decision Date: 01 August 1999
• Docket Number: Docket Nos. 99-1321
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. FRANCIS BONNET GRULLON, also known as Francis Bowmet, also known as Francis Bonnet, also known as Francis Bowmitt, also known as Francis Grullom, also known as Francis Bowmmet, and DWIGHT MARLON CARTER, Defendants-Appellants. (L), 99-1325
• Court: U.S. Court of Appeals — Second Circuit

Page 692

212 F.3d 692 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. FRANCIS BONNET GRULLON, also known as Francis Bowmet, also known as Francis Bonnet, also known as Francis Bowmitt, also known as Francis Grullom, also known as Francis Bowmmet, and DWIGHT MARLON CARTER, Defendants-Appellants.

Docket Nos. 99-1321(L), 99-1325

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: January 3, 2000

Decided: May 12, 2000

Appeals from judgments of the United States District Court for the Southern District of New York, Lewis A. Kaplan, Judge, imposing sentences within the applicable Sentencing Guidelines ranges for violations of 8U.S.C. §1326, denying downward departures requested in order to match lower sentences imposed in the Southern District of California as a result of prosecutorial practices in that district. See 53 F.Supp.2d 430 (S.D.N.Y. 1999).

Affirmed.

MATTHEW L. BIBEN, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Jay K. Musoff, George S. Canellos, Assistant United States Attorneys, New York, New York, on the brief), for Appellee.

EDWARD S. ZAS, New York, New York (The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, on the brief), for Defendants-Appellants.

Before: FEINBERG, KEARSE, and SACK, Circuit Judges.

KEARSE, Circuit Judge:

In these consolidated appeals, defendants Francis Bonnet-Grullon and Dwight Marlon Carter appeal from judgments of conviction entered in their unrelated cases in the United States District Court for the Southern District of New York, following their respective pleas of guilty before Lewis A. Kaplan, Judge, to unlawfully reentering the United States after having been deported following conviction of an aggravated felony, see 8U.S.C. §§1326(a) and (b)(2) (Supp. III 1997). Each defendant was sentenced within the Sentencing Guidelines ("Guidelines") range applicable to him, with Bonnet-Grullon receiving a term of 70 months' imprisonment, and Carter receiving a term of 46 months' imprisonment. On appeal, Bonnet-Grullon and Carter contend that the district court erred in ruling that it lacked authority to grant their requests for downward departures on the ground that the failure to depart created disparity with the far lower sentences routinely imposed for the same conduct in another judicial district. For the reasons that follow, we affirm the district court's ruling that it lacked the authority to depart on the basis of that interdistrict sentencing disparity.

I. BACKGROUND

The pertinent facts are not in dispute in either case. Bonnet-Grullon, a citizen of the Dominican Republic, was convicted in a New York court in 1994 of criminal sale of a controlled substance in the fifth degree, an aggravated felony as defined in 8U.S.C. §1101(a)(43)(B) (1994). He was deported from the United States in 1995. In 1997, Bonnet-Grullon was found in the United States, having reentered without the permission of the United States Attorney General.

Carter, a citizen of Belize, was convicted in a Massachusetts court in 1993 of criminal possession of a controlled substance with intent to distribute, likewise an aggravated felony within the meaning of §1101(a)(43)(B). Carter was deported from the United States in 1997. He was found in the United States in 1998, having reentered without the permission of the Attorney General.

Each defendant, without entering into a plea agreement, pleaded guilty to one count of having unlawfully entered the United States following deportation for conviction of an aggravated felony, in violation of 8U.S.C. §1326. That section, entitled "Reentry of removed aliens," provides in pertinent part as follows:

(a) In general

Subject to subsection (b) of this section, any alien who

(1) has been ... deported[] or removed ... and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless ... 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 ...,

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

(b) Criminal penalties for reentry of certain removed aliens

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

....

(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both ....

8 U.S.C. §§1326(a) and (b)(2) (emphases added). Bonnet-Grullon and Carter moved for downward departures to reduce the substantial prison terms to which they were exposed under §1326(b)(2).

A. The Proceedings as to Bonnet-Grullon

The presentence report ("PSR") prepared on Bonnet-Grullon concluded that, in light of his criminal history category and his total offense level, the Guidelines range of imprisonment applicable to him was 70 to 87 months. Bonnet-Grullon did not contest the PSR computations, but he moved for a downward departure pursuant to Guidelines §5K2.0, contending that a departure was necessary in order to avoid imposing on him a sentence that was harsher than the sentences routinely imposed on similarly situated illegally reentering aliens in certain other judicial districts.

Bonnet-Grullon pointed out that the United States Attorney's Office in the Southern District of California had adopted a policy ("SDC Policy") pursuant to which aliens who reenter the United States without permission after having been deported following their convictions for aggravated felonies, and who agree to plead guilty to the charges against them, are charged not under 8U.S.C. §1326 but rather under 8 U.S.C. §1325(a) (1994). The latter section applies to any alien who enters the United States at an improper time or place or by willful concealment or misrepresentation of a material fact; it applies to such an alien whether or not he has previously been deported or convicted of an aggravated felony; and it provides a maximum prison term of six months for a first offense (a misdemeanor) and two years for a subsequent offense (a felony). Bonnet-Grullon argued that under the SDC Policy, "[d]efendants prosecuted in San Diego ... are permitted to plead guilty to two counts (one felony count and one misdemeanor count) of violating 8U.S.C. §1325," and thereby face a total maximum prison term of 30 months. (Letter from Legal Aid Society Attorneys John P. Curley and Edward S. Zas to Judge Kaplan dated March 8, 1999, at 1 ("Bonnet-Grullon Letter").) Bonnet-Grullon argued that

[h]ere in this District, in contrast, similarly situated illegal re-entrants are routinely prosecuted for the more serious crime of violating 8U.S.C §1326(b)(2). They are not permitted to plead to a lesser count. Violating §1326(b)(2) carries a statutory maximum penalty of 20 years in prison and a typical guideline range of 70 to 87 months, with variations depending on the defendant's criminal history and other variables.

In short, illegal re-entrants prosecuted in this District systematically receive sentences far in excess of those received by defendants prosecuted elsewhere, even though the conduct and the defendants' backgrounds are essentially identical.

(Bonnet-Grullon Letter at 2.)

Bonnet-Grullon argued that the existence of the SDC policy required a downward departure in his case because the "unwarranted sentencing disparity resulting from the government's uneven charging decisions creates a 'mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.'" (Id. at 1 (quoting 18 U.S.C. §3553(b)); see id. at 8 (failure to depart "would lead to a disparate sentence in a manner not contemplated by the Sentencing Commission").) He argued, inter alia, that this Court's decision in United States v. Tejeda, 146 F.3d 84 (2d Cir. 1998) (per curiam), while holding that a sentencing court has no authority to depart to avoid a disparity between the sentences of codefendants, had suggested that a departure would be permissible in a case such as Bonnet-Grullon's, as Tejeda referred to Congress's objective of "'eliminating disparity on a national level'" (Bonnet-Grullon Letter at 4 (quoting United States v. Tejeda, 146 F.3d at 87) (emphasis in letter)).

The government, although opposing Bonnet-Grullon's motion, generally agreed with his characterization of the SDC Policy. It noted that in the mid-1990s, prior to the decision of the Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Southern District of California had sought to expedite prosecution of defendants accused of illegal reentry by employing what might be described as a bifurcated 1326 policy. It offered most such defendants the opportunity, on certain conditions, to plead guilty only to a charge under subsection (a) of §1326, on the theory that subsection (a), with its two-year maximum prison term, and subsection (b)(2), with a 20-year maximum, created separate crimes. In Almendarez-Torres, however, the Supreme Court held that subsection (b)(2) of §1326 does not create a separate crime but is merely a penalty provision that may be applicable to a defendant whose conduct is described in §1326(a). See 523 U.S. at 235. Thus, as the government noted, insofar as the prior practice in the Southern District of California was concerned, the Supreme Court's ruling in Almendarez-Torres "eliminated the guaranty of a two-year statutory maximum sentence for an early plea to violating section 1326(a)." (Letter from Assistant United States Attorney Jay K. Musoff to Judge Kaplan dated April 5, 1999 ("Government Letter"), at 3 n.1 (internal quotation marks omitted).) As a result, the U.S. Attorney's Office in the Southern District of...