U.S. v. Hovsepian
| Citation | 307 F.3d 922 |
| Decision Date | 30 September 2002 |
| Docket Number | No. 01-55247.,No. 99-56922.,No. 99-50041.,No. 00-55320.,99-50041.,01-55247.,99-56922.,00-55320. |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Viken HOVSEPIAN; Viken Yacoubian, Defendants-Appellees. Viken Hovsepian, Plaintiff-Appellee, v. United States of America; United States Immigration and Naturalization Service, Defendants-Appellants. Viken Hovsepian; Viken Yacoubian, Plaintiffs-Appellees, v. United States of America; United States Immigration and Naturalization Service, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Jean Rosenbluth, Assistant United States Attorney, Los Angeles, CA, argued the cause for the appellant. Alejandro N. Mayorkas, United States Attorney; John S. Gordon, United States Attorney; Ronald L. Cheng, Acting Assistant United States Attorney; Lawrence E. Kole, Assistant United States 15240 Attorney; Los Angeles, CA, were on the briefs for the appellant.
Barrett S. Litt, Litt & Associates, Los Angeles, CA, argued the cause for appellee Viken Hovsepian.
Michael J. Lightfoot, Talcott, Lightfoot, Vandevelde, Sadowsky, Medvene & Levine, Los Angeles, CA, argued the cause for appellee Viken Yacoubian. Paul J. Estuar, James H. Locklin and Mathew L. Millen were on the briefs for the appellees.
Appeal from the United States District Court for the Central District of California, Mariana R. Pfaelzer, District Judge, Presiding. D.C. Nos. CR-82-0917-MRP, CV-98-01001-MRP.
Before D.W. NELSON, O'SCANNLAIN, and KLEINFELD, Circuit Judges.
Among other issues, we must decide whether a federal district court may grant citizenship to resident aliens whose applications were rejected by the Immigration and Naturalization Service in part because of their past terrorist activities.
In November 1999, during the pendency of various civil and criminal proceedings arising out of challenges to earlier convictions, the district court naturalized Viken Hovsepian and Viken Yacoubian (the "applicants") despite the fact that the Immigration and Naturalization Service (the "INS") had previously denied their applications. To understand the context of such proceedings and the many collateral issues raised by these appeals, a detailed history is in order.
We begin in 1982, when the FBI discovered through intercepted phone conversations that the applicants were planning to blow up the offices of the Honorary Turkish Consul General in Philadelphia. At the time, the applicants were associated with the Justice Commandoes of the Armenian Genocide, a terrorist organization dedicated to exacting revenge against Turkey for atrocities committed against Armenians. The FBI learned that the applicants had arranged for a coconspirator to transport the bomb on a commercial airliner from Los Angeles International Airport to Boston's Logan Airport on October 22. The FBI failed to detain the coconspirator, and he successfully boarded the flight with the bomb stowed in his checked baggage. However, upon landing, the FBI promptly arrested him and seized the bomb. The FBI later estimated that the bomb likely would have killed between 2000 and 3000 people.
The applicants, who were Lebanese citizens and lawful permanent residents of the United States, were duly convicted of various federal explosives offenses. At the time of conviction, Yacoubian was twenty-one and Hovsepian was twenty-four, and thus both were eligible for sentencing under the Federal Youth Corrections Act (FYCA), which pertained to offenders twenty-six years old and under. 18 U.S.C. §§ 4216, 5010 (1982) (repealed 1984). Because Yacoubian was under twenty-two, the court could sentence him as an adult only if it made an explicit finding that he would not benefit from a sentence under the FYCA. § 5010; Dorszynski v. United States, 418 U.S. 424, 425-26, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). As for Hovsepian, who was over twenty-two, the court was required to sentence him as an adult unless it concluded that he would benefit from a sentence under the Act. § 4216.
The court sentenced Hovsepian and Yacoubian as adults. While the court expressly found that Hovsepian would not benefit from a FYCA sentence, the court neglected to make such a finding as to Yacoubian. At sentencing, the court also issued a Judicial Recommendation Against Deportation (JRAD) for both applicants. See 8 U.S.C. § 1251(b)(2) (1982) (repealed 1990). Their convictions made them eligible for deportation for having committed a crime of moral turpitude. 15242 See § 1251(a)(4). The JRAD prohibited the INS from deporting them on this ground. § 1251(a)(4).
Both Hovsepian and Yacoubian have served their full prison terms. Since their release, each has married and lives in California. Neither has since run afoul of the law; indeed, both have established very successful, distinguished careers. Hovsepian earned a Ph. D. in international relations from the University of Southern California in 1994. He currently manages a hedge fund with a partner who is based in New York. Yacoubian earned a master's degree in psychology from Loyola Marymount University in 1988. He later entered the Ph. D. program at the University of Southern California. He is currently the principal of the Rose and Alex Pilibos Armenian High School and an adjunct professor at Woodbury University. Both submitted numerous glowing character references, many of which detailed their commitment to the Armenian-American community.
In 1988, Congress amended the immigration laws, making unlawful possession of a destructive device a deportable offense. § 1227(a)(2)(C). In 1990, Congress made this ground of deportation retroactive to all aliens regardless of the date of their convictions. Pub.L. No. 101-649, § 602(c), 104 Stat. 4978, 5081-82 (1990). The applicants' offenses fell within this new category of deportation. In 1991, the INS placed a detainer on Yacoubian, a precursor to deportation. Yacoubian filed suit, claiming that the JRAD barred the INS's action; the district court permanently enjoined the INS from initiating deportation proceedings. We reversed, holding that the JRAD did not apply to the new ground of deportation. See United States v. Yacoubian, 24 F.3d 1 (9th Cir.1994).
In 1997, the United States filed a Rule 36 motion under the Federal Rules of Criminal Procedure to correct certain typographical errors in the applicants' judgment and commitment orders. The motion's purpose was to assist the INS in initiating deportation proceedings against the applicants. The court denied the motion and chided the government for seeking to deport the applicants. R.T. 8/5/1997 at 10-11 ().
While the government's motion was pending, Hovsepian made a Rule 35 motion for a "correction" of his sentence. Alternatively, he sought writs of audita querela and coram nobis. He claimed that the district court committed a "mistake of fact" at the time of sentencing. Specifically he claimed that the court mistakenly thought that the JRAD would categorically bar the INS from deporting him on the basis of his convictions. As relief, he sought resentencing under the FYCA, and expungement of his conviction.
Yacoubian similarly filed a Rule 35 motion, also seeking resentencing and expungement under the FYCA. He stressed that the court neglected to find at sentencing that he would not benefit from a sentence under the FYCA.
The court granted Hovsepian's and Yacoubian's motions and resentenced both under the FYCA. The court "expunged" their convictions by ordering the FBI to remove their conviction records from its files. The court directed the FBI to place the conviction records in a "separate storage facility which is not to be opened other than in the course of a bona fide criminal investigation by law enforcement, and only where necessary for such an investigation." With their convictions expunged, the applicants likely were no longer eligible for deportation.
For good measure, Hovsepian filed a separate civil proceeding, seeking an injunction barring the INS from commencing deportation proceedings. The court permanently enjoined the INS from deporting Hovsepian on any ground that was not in existence at the time of his original sentencing. The injunction's practical effect is to make the JRAD a bar to any deportation attempts by the INS.
During the pendency of the foregoing criminal and civil proceedings, the applicants filed naturalization applications with the INS, and in due course, an INS examiner interviewed both Hovsepian and Yacoubian. Before the INS rendered a decision, the applicants filed suit, requesting that the court naturalize them. The INS subsequently denied the applications, but the district court naturalized the applicants nonetheless. The United States filed these timely appeals raising various criminal, civil, and naturalization issues.
The government appeals Dr. Hovsepian's, but not Yacoubian's resentencing under the FYCA.1 The court resentenced Hovsepian by granting his Rule 35 motion and alternatively by granting him a writ of audita querela.
"District courts do not have inherent authority to resentence defendants at any time." United States v. Stump, 914 F.2d 170, 172 (9th Cir.1990). Rule 35 is generally the only vehicle available for resentencing, unless the case is on remand from the Court of Appeals. United States v. Minor, 846 F.2d 1184, 1187 (9th Cir.1988).
Rule 35(a) provides that "A court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence."2 The time for a reduction of sentence has long since elapsed, Fed.R.Crim.P. 35(b), and thus the question is whether Hovsepian received an "illegal sentence." An "illegal sentence" is "one...
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U.S. v. Hovsepian
...I. Panel Opinion A three-judge panel of this court reversed the district court in almost every respect.3 See United States v. Hovsepian, 307 F.3d 922 (9th Cir.2002). The panel held that neither Rule 35 nor the writ of audita querela offered an appropriate vehicle for resentencing Hovsepian ......
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...expungement in the context of the Federal Youth Correction Act's direction to "set aside the conviction." See United States v. Hovsepian, 307 F.3d 922, 928-30 (9th Cir.2002); Sumner, 226 F.3d at 1009-10. The Federal Youth Corrections Act, 18 U.S.C. § 5010(a) (repealed in 1984), continues to......
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...to the trial court under rule 22(e) to correct a sentence enhancement made in violation of the statute).33 United States v. Hovsepian, 307 F.3d 922, 927–28 (9th Cir.2002) ; see also Hill, 368 U.S. at 430, 82 S.Ct. 468 (finding no illegal sentence under rule 35(a) when the sentence was not “......
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State v. Houston
...to the trial court under rule 22(e) to correct a sentence enhancement made in violation of the statute). 33. United States v. Hovsepian, 307 F.3d 922, 927-28 (9th Cir. 2002); see also Hill, 368 U.S. at 430 (finding no illegal sentence under rule 35(a) when the sentence was not "legally or c......