U.S. v. Medrano, 99-CR-322 (ARR).
| Decision Date | 01 March 2000 |
| Docket Number | No. 99-CR-322 (ARR).,99-CR-322 (ARR). |
| Citation | 89 F.Supp.2d 310 |
| Parties | UNITED STATES v. Rafael MEDRANO, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Mildred M. Whalen, Federal Defender Division, Brooklyn, NY, for Defendant.
Jonathan E. Davis, Assistant United States Attorney, Brooklyn, NY, for U.S.
In this case, the defendant, convicted of being found in the United States after having previously been arrested and deported from the country, in violation of 8 U.S.C. § 1326(a), requests a downward departure on the ground that a four year delay in this prosecution precluded the possibility of his serving a sentence for this offense partially or fully concurrently with his service of a state prison sentence. The issue raises complicated questions, unresolved in this Circuit, about the intersection of 18 U.S.C. § 3584(a), the statute governing the imposition of a sentence on a defendant subject to an undischarged term of imprisonment, 1998 Sentencing Guideline § 5G1.3, the guideline promulgated to effectuate the statutory directive, and 8 U.S.C. § 1326, the illegal reentry statute that the defendant in this case has violated. For the reasons discussed below, I conclude that I am authorized to depart downwardly from the sentence otherwise directed by the Guidelines. Further, I find that such a departure is warranted in the circumstances of this case.
The defendant, Rafael Medrano, is a citizen of the Dominican Republic who has lived at times with his mother in Queens, New York. Between 1982 and 1988, Medrano was convicted of various crimes, including robbery and criminal sale of marijuana, in Criminal Court and Supreme Court, Queens County. On October 25, 1990, Medrano was deported for having violated § 241(a)(11) of the Immigration and Nationality Act based on a July 15, 1986 conviction for attempted criminal possession of a controlled sentence.
Medrano reportedly returned to the United States in 1993. On March 10, 1995, Medrano, then using the name Tony Ramon, was convicted in Criminal Court, Queens County, for criminal sale of a controlled substance, namely, the sale of 1.2 grains of cocaine. Medrano was sentenced to six years in custody and incarcerated in Downstate Correctional Facility in Fishkill, New York.
Shortly thereafter, on March 31, 1995, the Immigration and Naturalization Service (INS) interviewed Medrano during a routine screening of inmates at the prison. Medrano revealed to the INS his actual name and truthfully informed the INS that he had been deported. Twenty-one months later, on December 23, 1996, a complaint was filed in this court charging that Medrano "did enter, attempt to enter, and was found in the United States" after having been deported subsequent to a conviction for the commission of an aggravated felony. It was not until March 15, 1999, however, after Medrano had concluded service of his state sentence, that he was writted into federal custody to face prosecution on the charge in the outstanding complaint.
On April 13, 1999, Medrano waived his right to indictment by a grand jury and entered a plea of guilty to a one count information charging that between September 17, 1994, and March 19, 1999, the defendant, having previously been arrested and deported from the United States, was found in the United States without the permission of the Attorney General, in violation of 8 U.S.C. § 1326(a) and 1326(b)(2).
In the Presentence Report and Addenda, the Probation Department calculates an offense level of 21 and a criminal history category of VI, resulting in a range of imprisonment of 77 to 96 months. In letters to the court dated November 3, 1999 and December 21, 1999, Medrano seeks a downward departure from this guideline sentence, arguing that it should be adjusted to accommodate his contention that if he had been prosecuted immediately or within a reasonable time after the INS discovered his illegal presence in the United States, I could and would have ordered his sentence to run wholly or partially concurrently with his state sentence. The government opposes this request.
The application of the Sentencing Guidelines to the requested downward departure in this case requires analysis of the interplay among 18 U.S.C. § 3584(a) 1998 U.S.S.G. § 5G1.3, and the Illegal Reentry statute, 8 U.S.C. § 1326. The defendant contends that a downward departure is warranted to the extent that I could have, and would have, sentenced Medrano concurrently with his state sentence if the federal prosecution had been initiated immediately or reasonably promptly after the INS discovered Medrano's illegal presence here. Medrano makes a two-step argument: First, he contends that had he been prosecuted federally while still serving his state sentence, I would have had discretion to impose a fully or partially concurrent sentence either directly under § 5G1.3(c), which expressly authorizes such a sentence, or by departing downwardly from a sentence under § 5G1.3(a), which otherwise mandates a consecutive sentence. Second, Medrano contends that because his sentence could thus have been imposed fully or partially concurrently with his state sentence, the four year delay between the INS's discovery of his illegal presence in the United States and the initiation of federal prosecution justifies a downward departure, notwithstanding that he has now completed service of his state sentence. I address these contentions in turn.
Section 3584(a) of Title 18 of the United States Code provides that a district court has discretion, predicated on the consideration of factors listed in 18 U.S.C. § 3553(a), to impose a concurrent or a consecutive sentence on a defendant who is already subject to an undischarged term of imprisonment. Sentencing Guideline § 5G1.3 provides guidance to the district court in exercising this discretion. If Medrano had been prosecuted when the INS discovered his illegal presence in the United States—and thus while he remained subject to a portion of his state sentence— the federal sentence would have been governed by 18 U.S.C. § 3584(a) and U.S.S.G. § 5G1.3.
Section 5G1.3(a) provides that if the instant offense was committed "while the defendant was serving a term of imprisonment (including work release, furlough, or escape status)," the sentence for the instant offense "shall be imposed to run consecutively to the undischarged term of imprisonment" (emphasis added). Section 5G1.3(b) provides that if subsection (a) does not apply and the undischarged term resulted from offenses that have been fully taken into account in the determination of the offense level, the instant sentence "shall be imposed to run concurrently to the undischarged term of imprisonment" (emphasis added). Section 5G1.3(c), labeled a policy statement, provides that in any other case, the district court may impose the sentence consecutively, concurrently, or partially concurrently to "achieve a reasonable punishment for the instant offense."
The government contends that even if Medrano had been prosecuted while serving his state sentence, his federal sentence would have been governed by subsection (a) because the INS "found" Medrano while he was serving his state sentence. Medrano contends, by contrast, that the sentence would have been governed by subsection (c), permitting a wholly or partially concurrent sentence, because Medrano committed all of the elements of his conduct relating to the offense—namely the initial illegal reentry and the subsequent remaining in the country—before he was incarcerated. Alternatively, Medrano contends that even if subsection (a) would have applied, I would nonetheless have been authorized to depart downwardly, as long as the factors set forth in 18 U.S.C. § 3553(a) were satisfied. To determine which subsection would have applied, I must first determine when Medrano committed the offense of "being found" illegally in the United States.
Section 1326(a) provides that any previously deported alien who "enters, attempts to enter, or is at any time found in, the United States" shall be fined or imprisoned or both. 8 U.S.C. § 1326(a). A defendant is often charged with both illegal reentry and being found in the country. See, e.g., United States v. Whittaker, 999 F.2d 38, 41 (2d Cir.1993). The plain language of the statute, however, provides:
Whittaker, 999 F.2d at 42 (quoting United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.1993)) (emphasis added); see also United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir.1995).
The offenses of illegal reentry and attempted reentry are typically complete as soon as the entry or attempt is made. See Rivera-Ventura, 72 F.3d at 281. Thus, an alien charged with illegal reentry—even if found while serving a state sentence—is sentenced under § 5G1.3(c). See United States v. Maria, 186 F.3d 65, 69 & n. 3 (2d Cir.1999); United States v. Sanchez-Rodriguez, 161 F.3d 556, 564 (9th Cir.1998) (en banc).
The offense of "being found" in the United States is more complicated to place temporally because it depends "not only on the conduct of the alien but also on acts and knowledge of the federal authorities." Rivera-Ventura, 72 F.3d at 281. Almost all courts that have addressed the timing of this offense have done so in one of two contexts: either in assessing the running of the statute of limitations or in determining the appropriate version of the Sentencing Guidelines to apply in a particular case.
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