U.S. v Mercedes, 041102 FED2, 01-1170

Docket Nº:01-1170
Party Name:U.S. v Mercedes
Case Date:January 03, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

UNITED STATES OF AMERICA, APPELLEE,

v.

NELSON MERCEDES, AKA "NELSON MANUEL FEIREIRA," AKA "JOSE P. ROGER," AKA "JOSE HERMAN," AKA "NESOL MERSEDE," AKA "JAYAVO FIGUEROA," AKA "NELSON MANUEL FERRARA," AKA "JESUS RODRIGUEZ," AKA "NELSON FERRERA," AKA "ROBERT A. FIGUEROA," AKA "ROBERTO FIGUEROA," AKA "RAMON MORENO RAMIREZ," AKA "MORENO RAMIREZ RAMON," AKA "JOHN SIMON RAMIREZ," AKA "NELSON MANUEL MERCEDES," AKA "RAMON MORENOS-RAMIREZ," AKA "JOSE RODRIGUEZ," DEFENDANT-APPELLANT.

Docket No. 01-1170

August Term 2001

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: January 3, 2002

April 11, 2002

Appeal from judgment of conviction entered in the United States District Court for the Southern District of New York (Berman, J., following defendant's plea of guilty to illegally reentering the United States after having been deported subsequent to a conviction for commission of an aggravated felony. Affirmed.

Neil B. Checkman, New York, Ny, for Defendant-Appellant Mercedes.

Marc A. Weinstein, Assistant United States Attorney, New York, NY (Mary Jo White, United States Attorney for the Southern District of New York; Mark D. Harris, Assistant United States Attorney, on the brief), for Appellee.

Before: Feinberg and Katzmann, Circuit Judges, and Gleeson, District Judge.(FN1)

Feinberg, Circuit Judge

Defendant-appellant Nelson Mercedes appeals from a judgment of conviction entered in March 2001 by the United States District Court for the Southern District of New York (Berman, J.). In December 1999, Mercedes pleaded guilty to one count of illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326(a), (b)(2). Mercedes thereafter moved to withdraw his plea and dismiss the indictment on several grounds, including that the indictment was untimely. Also, prior to sentencing, defense counsel argued that Mercedes should not be subjected to a 16-level enhancement under the Sentencing Guidelines for an aggravated felony conviction that was not mentioned in the indictment. The district court rejected these arguments and sentenced Mercedes principally to 77 months imprisonment. For the reasons stated below, we affirm the judgment of the district court.

I. Background

The facts relevant to this appeal are as follows:

In January 1991, Mercedes was deported from the United States to the Dominican Republic after serving a sentence for a 1990 conviction in the United States District Court for the District of Puerto Rico for using an altered United States passport, in violation of 18 U.S.C. § 1543. Prior to his deportation, Mercedes had also been convicted of several other offenses, including a 1984 conviction in New York Supreme Court for second degree robbery and a 1987 conviction in the Southern District of New York for possession and distribution of cocaine, in violation of 21 U.S.C. §§ 812, 814(a)(1), 841(b)(1)(c).

Around March 1991, without the Government's permission or knowledge, Mercedes illegally reentered the United States. In August 1993, Mercedes was arrested by the New York City Police Department on a state homicide charge. At the time of his arrest, Mercedes used the alias "Robert Figueroa", and a false date of birth was either given to or obtained by state officials. Mercedes subsequently pleaded guilty to second degree manslaughter and was sentenced in May 1997 to four to eight years imprisonment.

In August 1996, the Immigration and Naturalization Service (INS) first learned of Mercedes's presence in the United States when they interviewed him at Rikers Island Correctional Facility, where he was awaiting sentencing on the state homicide charge. In December 1996, after reviewing its files, the INS determined that Mercedes had reentered the country illegally after his 1991 deportation. In March 1997, the Government filed a complaint against Mercedes in the Southern District of New York, charging him with illegally reentering the United States after having been deported subsequent to a felony conviction. The complaint named only Mercedes's 1984 robbery conviction as the prior felony. The same day, a federal arrest warrant based on that complaint was issued.

In February 1999, Mercedes was released from state prison and was immediately arrested by INS agents on the 1997 warrant. In March 1999, Mercedes was indicted in the Southern District on one count of illegally entering and being "found in" the United States after having been deported "subsequent to a conviction for the commission of an aggravated felony, to wit, a conviction on August 31, 1984, in the Supreme Court for the State of New York... for robbery in the second degree," in violation of § 1326(a), (b)(2). Like the March 1997 Government complaint, the indictment did not refer to any prior felony other than the robbery.

In December 1999, Mercedes pleaded guilty before Magistrate Judge Ronald L. Ellis. Prior to the plea proceedings, the Government provided Mercedes with a Pimentel letter setting forth the Government's view of Mercedes's sentencing exposure. See United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991) (suggesting that the Government "inform defendants, prior to accepting plea agreements, as to the likely range of sentences that their pleas will authorize under the Guidelines"). The Pimentel letter stated that the illegal re-entry charge carried a maximum term of 20 years imprisonment. The letter also calculated Mercedes's expected sentencing range to be 77 to 96 months. The calculation included a 16-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because Mercedes was deported subsequent to an "aggravated felony" conviction. The calculation also took into account Mercedes's criminal history, and the letter listed seven separate crimes committed by Mercedes. Those crimes included both the 1984 state robbery and 1987 federal narcotics convictions.(FN2) The Pimentel letter did not indicate which of the seven offenses constituted an aggravated felony.

At his plea allocution before Magistrate Judge Ellis, Mercedes expressly admitted to reentering the United States, without permission, after having been deported. He also admitted that he knew reentering the country was wrong, and said that he was "in this country already so [he was] guilty." During the hearing, the magistrate judge advised Mercedes, among other things, that the offense for which he was charged carried a maximum penalty of 20 years imprisonment. The magistrate judge also told Mercedes of the applicability of the Sentencing Guidelines, of the district court's ability to depart from the Guidelines "under certain limited circumstances," and of the requirement, under the Guidelines, that the district court "take into account a number of factors, including... any criminal history." Mercedes indicated that he understood all of this information.

The magistrate judge further inquired, "Do you understand that if the sentence is more severe than you expected, you'll be bound by your guilty plea and will not be permitted to withdraw it?" Mercedes responded that he understood and that he had been informed of the Government's sentencing calculations in its Pimentel letter, although he stated that he did not agree with the letter. Mercedes also specified that he would "plead guilty to illegal re-entry only." The Government explained that it understood this qualification to mean that Mercedes was "leaving open [the] sentencing issue as to whether or not he was deported after an aggravated felony." The magistrate judge thereafter found Mercedes's plea to be knowing and voluntary, and he recommended that Judge Berman accept the plea.

Prior to the district court's acceptance of his guilty plea, Mercedes filed various pro se motions to withdraw his plea and dismiss the indictment. The motions alleged violations of the Interstate Agreement on Detainers Act, 18 U.S.C. app., § 2. Art. III; the Speedy Trial Act, 18 U.S.C. §§ 3161-3174; Fed. R. Crim. P. 48(b); the Sixth Amendment; and 18 U.S.C. § 3282 (the five-year statute of limitations applicable to a § 1326 offense). In June 2000, Judge Berman denied the motions without prejudice because Mercedes was represented by counsel and could therefore not proceed pro se.(FN3) Mercedes was invited to resubmit the motions either through counsel or, if he elected to proceed without counsel, by appearing pro se. The district court nevertheless noted that it would have denied the motions on the merits anyway if it had considered them. Later in the same proceeding, Judge Berman accepted the magistrate judge's recommendation to accept Mercedes's guilty plea, and the plea was entered.

In August 2000, Mercedes, proceeding pro se, acted upon the district court's suggestion and filed a new motion to withdraw his plea and dismiss the indictment because the prosecution was untimely.(FN4) With one exception, the other grounds alleged in his previous motions were not renewed.(FN5) In October 2000, the district court denied the motion, finding the statute of limitations claim without merit. Citing United States v. Acevedo, 229 F.3d 350 (2d Cir.), cert. denied, 531 U.S. 1027 (2000), the district court ruled that the statute of limitations for an illegal re-entry offense does not begin to run until the INS discovers the alien's presence in the United States. The district court held that the 1999 indictment was filed within the five-year statute of limitations because (a) Mercedes's 1993 state arrest and fingerprinting did not place the INS on notice of his renewed presence in the country, and (b) the INS first found Mercedes in August 1996 after interviewing him in state prison. The district court further noted that there was no basis to permit withdrawal of Mercedes's guilty plea because Mercedes entered the plea "knowingly, intelligently, and voluntarily," and he "never denied his guilt" of the crime.

Also in October 2000, the Probation Department prepared a...

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