U.S. v. Krawczak, 02-13461.

• Citation: 331 F.3d 1302
• Decision Date: 02 June 2003
• Docket Number: No. 02-13461.,02-13461.
• Parties: UNITED STATES of America, Respondent-Appellee, v. Leszek KRAWCZAK, Petitioner-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

331 F.3d 1302

UNITED STATES of America, Respondent-Appellee, v. Leszek KRAWCZAK, Petitioner-Appellant.

No. 02-13461.

United States Court of Appeals, Eleventh Circuit.

June 2, 2003.

Kathleen M. Williams, Fed. Pub. Def., Miami, FL, Lori Barrist, Fed. Pub. Def., West Palm Beach, FL, for Petitioner-Appellant.

Dawn Bowen, Anne R. Schultz, Jeanne Marie Mullenhoff, Miamk, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BIRCH, CARNES and HUG,^* Circuit Judges.

HUG, Circuit Judge:

Leszek Krawczak ("Krawczak") appeals a 16-level sentencing enhancement applied to his conviction for attempted reentry of a deported alien subsequent to a felony conviction. The district court enhanced his sentence pursuant to the United States Sentencing Guidelines because it determined Krawczak had a prior conviction for an alien smuggling offense committed for profit. The district court concluded the prior conviction was ambiguous as to whether the offense was committed for profit. Consequently, the district court examined the facts underlying the conviction to determine that the offense was committed for profit.

The issue before us is whether the court was justified in going beyond the conviction of the prior statutory offense to examine the facts underlying the conviction and thus determine that the prior offense was committed for profit.

I

In 1994, Krawczak pled guilty to one count of an eight count indictment for aiding and abetting the transportation of illegal aliens within the United States in violation of the 1993 version of 8 U.S.C. § 1324(a)(1)(B).

The 1993 version of the statute provided in relevant part that any person who:

(B) knowing or in reckless disregard of the fact than an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law... shall be fined in accordance with Title 18, or imprisoned not more than five years, or both, for each alien in respect to whom any violation of this paragraph occurs.

8 U.S.C. § 1324(a)(1)(B) (1993).

The 1994 presentence investigation report ("PSI") assigned Krawczak a base offense level of 9. The 1993 Guidelines Manual applicable to this case provided in § 2L1.1(b)(1) that if the offense had been committed "other than for profit," three levels should be deducted. Application Note 1 to § 2L1.1 stated that "for profit" meant for financial gain or commercial advantage. Krawczak did not receive a 3-level deduction from his offense level. After receiving a 2-level deduction for acceptance of responsibility, Krawczak's total offense level was 7 with a criminal history category of I. His guidelines sentencing range was 0-6 months. Had three levels been deducted from Krawczak's offense, his range would have been the same 0-6 months. Krawczak did not object, and had no incentive to object, to the denial of the 3-level "other than for profit" deduction. He was placed on one year unsupervised probation and fined $500.

In 2002, Krawczak pled guilty to attempted reentry of a deported alien subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). Krawczak was arrested after being referred to the United States Immigration Service for secondary questioning when he arrived at Fort Lauderdale International Airport and applied for admission to the United States as a non-immigrant visitor for pleasure. The probation officer determined that Krawczak's base offense level should be enhanced 16-levels under U.S.S.G. § 2L1.2(b)(1)(A)(vii) because his past conviction for an alien smuggling offense was committed for profit, referring to his 1994 conviction of 8 U.S.C. § 1324(a)(1)(B). Krawczak objected, claiming that he did not commit this prior offense for profit.

At his sentencing hearing, Krawczak reiterated his objection to the 16-level enhancement. If the prior offense was not committed for profit, Krawczak should have received only an 8-level enhancement for a deportation following an aggravated felony pursuant to U.S.S.G. § 2L1.2(b)(1)(C). The government attempted to call a witness to testify to the underlying facts of the 1994 conviction. Krawczak objected, claiming that under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) and United States v. Spell, 44 F.3d 936 (11th Cir.1995), the court was not allowed to engage in fact-finding concerning the prior conviction but instead was limited to an examination of the elements of the offense, the indictment, and the judgment and commitment order.

The district court overruled Krawczak's objection and allowed the government to present case-specific documents. The government introduced the 1993 indictment, the 1994 judgment and commitment order, and the 2002 version of 8 U.S.C. § 1324, stating that it could not locate the 1993 version of the statute. Counsel for Krawczak likewise did not have a copy of the 1993 version to present to the district court. The court questioned the parties as to whether they thought the 1993 statute was broad enough to encompass both for profit and not for profit conduct. The government could not remember well enough to answer, and defense counsel stated that different parts of the statute covered different kinds of conduct. Based on the 2002 language, the court decided that the 1993 version was ambiguous and that case-specific documents could be presented. The court admitted the 1994 PSI over the objection of Krawczak. The court suggested that the record be augmented to include the 1993 version of the statute.

The 1994 PSI indicated Krawczak's base offense level for the conviction was 9. The government contended that if the offense was not committed for profit, the 1993 guidelines, which the government did have available at this sentencing, allowed for a 3-level reduction in the base offense level and Krawczak did not receive this 3-level reduction. The government also asserted, apparently in reliance of the 2002 statute, that because Krawczak was subject to a sentence of ten years, he must have been sentenced to a for profit offense. Krawczak responded that the failure to receive the 3-level reduction from his base level did not mean that he committed the crime for profit because he faced the same sentence whether or not he received the 3-level reduction. He added that nowhere in the indictment or judgment did it say that the offense was committed for profit. The government responded that the 1994 PSI stated that Krawczak promised to pay another $300 per person for transporting aliens. Krawczak contended that he was going to pay someone else but was not going to receive money himself for the offense.

The court stated that this promise was sufficient to establish profit motive. The court then commented:

I want to tell you, candidly, I feel uncomfortable and I would feel uncomfortable predicating a decision simply on the fact that the PSR shows an offense level of 9, even though we all agree the offense level of 9 would be predicated on a for profit situation. I am equally uncomfortable, although I think it is confirmatory, when the presentence investigation report reflects the potential maximum of ten years when it's ten years for profit and five years without.

But I think what resolves, whatever ambiguity is there is the factual statement in the record in the presentence investigation report, and this presentence investigation report specifies what is obviously a significant aspect of the crime, and that is that money was going to be obtained.

The court then overruled Krawczak's objection and found that the 1994 conviction was an offense committed for profit, and therefore, the 16-level enhancement under § 2L1.2(b)(1)(A)(vii) was appropriate. The district court sentenced Krawczak to 37 months' imprisonment and 2 years' supervised release.

II

Krawczak argues there is nothing ambiguous about the 1993 version of 8 U.S.C. § 1324(a)(1)(B). No subsection of § 1324(a)(1) punished conduct for profit. He was subject to a sentence of ten years' imprisonment not because he transported aliens for profit (as the 2002 statute provides), but because he helped transport two people, receiving a sentence of five years for each (as the 1993 statute provides). A different subsection of the 1993 statute, 8 U.S.C. § 1324(a)(2)(B)(ii) prohibits bringing or attempting to bring an alien to the United States for the purpose of commercial advantage or private financial gain. He was not charged with nor did he plead guilty to violating § 1324(a)(2)(B)(ii), the for profit subsection. Krawczak also maintains that the 1994 PSI is unreliable because even though he did not receive the 3-level reduction for not for profit conduct, his base offense level and sentence would not have changed.

The government replies that Krawczak's 1994 judgment was ambiguous with respect to the facts underlying the conviction, and this ambiguity had to be resolved to determine whether or not the 16-level enhancement should apply. It also notes that Krawczak did not contest the factual findings contained within the 1994 PSI during the 1994 sentencing. Krawczak had, of course, objected to the admission of the entire PSI.

This Court reviews de novo the district court's interpretation of criminal statutes and sentencing guidelines. United States v. Padilla-Reyes, 247 F.3d 1158, 1159 (11th Cir.2001).

III

The issue on appeal is a narrow one. We must decide whether the district court properly determined that the 1993 statute and 1994 judgment were ambiguous in order to justify examining the 1994 presentence report for facts to inform the court whether the 16-level guidelines enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(vii) should apply.

The Supreme Court has stated that a sentencing court applying a statutory enhancement is generally required to consider...