U.S. v. Lennon

• Decision Date: 16 June 2004
• Docket Number: No. 02-4207.,02-4207.
• Citation: 372 F.3d 535
• Parties: UNITED STATES of America v. Christine Annemarie LENNON, Christine A. Lennon, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

372 F.3d 535

UNITED STATES of America v. Christine Annemarie LENNON, Christine A. Lennon, Appellant.

No. 02-4207.

United States Court of Appeals, Third Circuit.

Argued March 24, 2004.

June 16, 2004.

Patrick L. Meehan, United States Attorney, Laurie Magid, Deputy United States Attorney for Policy and Appeals, Robert A. Zauzmer, Assistant United States Attorney, Senior Appellate Counsel, Linwood C. Wright, Jr., (Argued), Assistant United States Attorney, Office of the United States Attorney, Philadelphia, for Appellee.

Stephen A. Morley, (Argued), Morley, Surin & Griffin, Philadelphia, for Appellant.

Before ROTH, AMBRO and CHERTOFF, Circuit Judges.

OPINION

CHERTOFF, Circuit Judge.

Christine Lennon appeals a final judgment of conviction and sentence entered by the District Court. Lennon pled guilty to being "found in the United States, having knowingly and unlawfully re-entered the United States" in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Lennon claims that the District Court's sentencing analysis violated her rights under the Constitution's Ex Post Facto clause. In part, this analysis turns on defining the nature of the offense to which Lennon pled. We have jurisdiction under 28 U.S.C. § 1291 and, for the reasons that follow, we will affirm.

I.

Lennon entered the United States in 1981 at the age of 17 as a lawful permanent resident. She is a single mother of three children, all American citizens by birth. She has maintained a close relationship with her children and has provided for them despite receiving no support from their three biological fathers.¹ She also suffers from Graves' disease, an autoimmune disorder.

Lennon's means of providing for herself and her children have not always been legal. In 1983, at age nineteen and only two years after assuming legal permanent residency in the United States, Lennon committed a shoplifting offense. She was convicted in 1988 and received a $300 fine. That year, Lennon was also charged with and convicted of violating the Pennsylvania Controlled Substance Act, when drugs and drug paraphernalia were found in her apartment. She served 28 months of her 27 to 53 month sentence. In 1992, she was convicted of aggravated assault on a New Jersey State Trooper. Lennon led the Troopers on a high-speed chase that reached speeds over 100 miles per hour and ended when she struck a different Trooper's vehicle with her car.² Lennon was sentenced to four years imprisonment, but was paroled to INS custody for deportation due to her criminal activity.

Lennon was deported to her native Jamaica on September 24, 1993. Eleven months after being deported, Lennon re-entered the United States under the pseudonym Diedra Barlow. She neither applied for admission to the United States nor obtained the express consent of the Attorney General before she re-entered. See 8 U.S.C. § 1326(a).

Soon after her illegal re-entry, Lennon resumed her violations of the law. She was convicted in 1996 of possession with intent to distribute marijuana.³ That offense resulted in a sentence of sixty days imprisonment followed by three years probation. Lennon also pled guilty to shoplifting three times in 1998, receiving a probation sentence each of the last two times. Additional shoplifting charges remain pending against her in Cherry Hill, New Jersey; Upper Merion Township, Pennsylvania; and Springfield Township, Pennsylvania.⁴ Grand larceny and grand theft charges remain pending against her in, respectively, Orange County and Palm Beach County, Florida.

Lennon eventually came to the attention of INS officials as a result of an anonymous tip and was apprehended on July 7, 2001. She was indicted for, and pled guilty to, being "found in the United States, having knowingly and unlawfully re-entered the United States" in violation of 8 U.S.C. §§ 1326(a) and (b)(2) (hereinafter "Section 1326"). J.A. at 32. Section 1326(a) contains three separate offenses, phrased in the disjunctive: (1) illegal re-entry, (2) attempted illegal reentry, and (3) being found illegally in the United States. See United States v. DiSantillo, 615 F.2d 128, 134 (3d Cir.1980).

At sentencing, Lennon contended that the indictment ambiguously charged her both with illegal re-entry, and with being illegally "found in" the United States. The Government asserted that that Lennon was charged only with the "found in" charge of Section 1326(a) and contended that such a violation is a continuing one, starting on the date (or approximate date) of her actual re-entry in 1994 and running through her apprehension in 2001. That being so, the Government advocated including as criminal history enhancements two of Lennon's crimes that "occurred" for criminal history purposes fewer than ten years before her 1994 re-entry date but more than ten years before the date in 2001 on which she was "found," in the sense of being actually apprehended.

Lennon also argued that, whatever crime she was charged with, the 1993 Sentencing Guidelines should apply because her crime was completed upon her illegal re-entry in 1994. The Government disagreed, pointing out that Section 1326 enumerates being "found in" as a criminal offense that is distinct from unlawful reentry. The Government argued that because her "found in" violation was continuing, it was "committed" at the time she re-entered through the date when she came to the attention of INS officials in 2001. Under that theory, the 1993 version of the Guidelines was inapplicable.

In the alternative, Lennon argued that the District Court should use the November 2000 version of the Guidelines-those in effect on the date she was apprehended by INS officials-rather than the November 2001 version of the Guidelines-those in effect on the date she was sentenced. The Government contended that use of the November 2001 Guidelines was appropriate and gave rise to no Ex Post Facto issue.

In imposing sentence, the District Court first held that Lennon's crime was committed on the date she was "found"-thus falling under the "found in" prong of Section 1326. The District Court looked to the November 2001 Guidelines, Section 2L1.2, to find Lennon's base offense level to be 8. The District Court then applied the 16 point enhancement in Section 2L1.2(b)(1)(A)-based either on Lennon's aggravated assault conviction (2L1.2(b)(1)(A)(ii)) or her possession with intent to distribute conviction (2L1.2(b)(1)(A)(i)). Next, the District Court reduced her offense level by three points for acceptance of responsibility under Section 3E1.1 for a total offense level of 21.

Finally, the District Court looked to Lennon's extensive criminal history in order to assign her a criminal history score. The District Court did consider under Section 4A1.2(e) those of Lennon's offenses that occurred more than ten years before her 2001 "found" date-implicitly holding that "found in" violations are continuing crimes-and assigned her four criminal history points for those offenses. The District Court assigned an additional 8 points under Section 4A1.2(e) for those of Lennon's crimes that occurred within ten years before her "found" date. The District Court designated a total criminal history category of V. The District Court determined, however, that this criminal history was overstated, and reduced it to a category IV, making her sentencing range 57-71 months. See U.S. SENTENCING GUIDELINES MANUAL § 4A1.3 (2001). The District Court imposed a sentence of 57 months imprisonment. Lennon timely appealed and maintains that the District Court violated her rights under the Constitution's Ex Post Facto clause.

We exercise plenary review over the District Court's interpretation of the Sentencing Guidelines and constitutional questions. See United States v. Cicirello, 301 F.3d 135, 137 (3d Cir.2002); United States v. Spinello, 265 F.3d 150, 153 (3d Cir.2001); United States v. Figueroa, 105 F.3d 874, 875-76 (3d Cir.1997). We review the District Court's factual findings for clear error, see Cicirello, 301 F.3d at 137, and the District Court's application of those facts to the Guidelines for an abuse of discretion. See Buford v. United States, 532 U.S. 59, 62-66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001); United States v. Zats, 298 F.3d 182, 185 (3d Cir.2002). In this context, we consider each of Lennon's claims in turn.

II.

The Ex Post Facto clause provides: "No Bill of Attainder or ex post facto Law shall be passed." U.S. CONST. art. I, § 9, cl. 3; see also U.S. CONST. art. I, § 10, cl. 1. A law does not run afoul of the Ex Post Facto clause unless it retroactively "alters the definition of criminal conduct or increases the penalty by which a crime is punishable." Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); see also, e.g., Lynce v. Mathis, 519 U.S. 433, 440-41, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (citing Calder v. Bull, 3 U.S. (Dall.) 386, 390, 1 L.Ed. 648 (1798)); United States v. Brady, 88 F.3d 225, 227 (3d Cir.1996) (citing Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 326, 18 L.Ed. 356 (1866)). The Sentencing Guidelines-along with all statutes that impose or dictate sentence-are, of course, subject to the Ex Post Facto clause. See Miller v. Florida, 482 U.S. 423, 429-35, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); United States v. Kopp, 951 F.2d 521, 526 (3d Cir.1991); see also U.S. SENTENCING GUIDELINES MANUAL § 1B1.11 (2003). But a District Court is entitled to employ the Guidelines in place at the time of sentencing unless doing so would expose the defendant to harsher penalties than were in effect at the time the crime was committed. See United States v. Corrado, 53 F.3d 620, 622-23 (3d Cir.1995). In order to establish, therefore, that the Ex Post Facto clause requires the application of an earlier version of the Sentencing Guidelines, a defendant must show that the crime was committed at a time that the earlier Guidelines version was in force and that the earlier version is more favorable to him or her....