U.S. v. Perez-Torres, PEREZ-TORRES

• Decision Date: 18 February 1994
• Docket Number: No. 93-8406,PEREZ-TORRES,93-8406
• Citation: 15 F.3d 403
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin Gerardo, a/k/a Martin Geraldo Perez, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 403

15 F.3d 403

UNITED STATES of America, Plaintiff-Appellee, v. Martin Gerardo PEREZ-TORRES, a/k/a Martin Geraldo Perez,

Defendant-Appellant.

No. 93-8406

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 18, 1994.

Philip J. Lynch, Asst. Federal Public Defender, San Antonio, TX, Lucien B. Campbell, Federal Public Defender, Abe P. Hernandez, Asst. Federal Public Defender, Austin, TX, for defendant-appellant.

Richard L. Durbin, Jr., Asst. U.S. Atty., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Martin Gerardo Perez-Torres (Perez) was convicted of reentering the United States after deportation, in violation of 8 U.S.C. Sec. 1326. Perez was sentenced to a 5-year term of imprisonment. The district court enhanced Perez's sentence because prior to his deportation he had been convicted of an aggravated felony. Perez appeals the district court's sentence because at the time of his deportation, he was informed by the Immigration and Naturalization Service (INS) that the maximum sentence he could receive for reentry was 2 years. Because we find that Perez had fair warning that his conduct was a felony, and that section 1326 clearly defined the penalties associated with its violation, we affirm the district court's sentencing decision.

Facts and Proceedings Below

On November 15, 1989, Perez was convicted in the United States District Court for the Western District of Texas of using an interstate communication facility to facilitate a felony drug transaction in violation of 21 U.S.C. Sec. 843(b), and sentenced to a term of imprisonment of 36 months followed by a 1-year term of supervised release. On May 30, 1992, Perez, a Mexican national, was deported to Mexico and was advised by INS personnel that reentry into the United States was a felony under 8 U.S.C. Sec. 1326, punishable by a term of imprisonment of not more than 2 years; this same information was provided to Perez in the printed portion of INS Form I-294 (Form I-294), which he signed prior to being deported. ¹ At the time of Perez's deportation, however, section 1326(b)(2) provided for an enhanced sentence of up to fifteen years' imprisonment for unlawful reentry by an alien previously convicted of an aggravated felony. ² Section 1326 had been amended in November of 1988 to increase the maximum punishment for reentry from two to fifteen years, but the version of Form I-294 that was provided to Perez at the time of his deportation had not been revised since March of 1978, and contained a message based on the pre-1988 section 1326, advising deportees that the maximum authorized sentence was two years.

On January 7, 1993, police officers arrested Perez at a motel in Austin, Texas, and charged him with possession of marihuana. At the time of his arrest, Perez was in the United States unlawfully, having reentered without obtaining consent from the Attorney General for admission after deportation.

On January 19, 1993, a federal grand jury returned a one-count indictment charging Perez with illegal reentry into the United States after conviction and deportation for a felony drug-trafficking offense in violation of 8 U.S.C. Sec. 1326. The government filed a Notice of Intent to Seek Enhancement of Sentence under 8 U.S.C. Sec. 1326(b)(2) based on Perez's prior drug trafficking conviction. ³ On April 5, 1993, Perez pleaded guilty to the indictment.

The Presentence Report (PSR) calculated a total offense level of 21 and a Criminal History Category of IV, after adjustments for Perez's prior deportation following a felony conviction and for acceptance of responsibility, resulting in a guideline range of 57 to 71 months. Perez submitted objections to the PSR, arguing that due process limited his maximum penalty to imprisonment for two years because of the information given to him by INS at the time of his deportation. The district court denied Perez's objection.

On June 10, 1993, the district court sentenced Perez to a term of imprisonment of 60 months, a 3-year term of supervised release, and a mandatory $50 assessment. The district court also revoked Perez's term of supervised release on the drug trafficking felony and imposed a consecutive sentence of twelve months. Perez timely filed a notice of appeal from the district court's imposition of the sixty month sentence.

Discussion

On appeal, Perez argues that the district court's imposition of an enhanced sentence is fundamentally unfair because, although the amended section 1326(b) provides for a maximum fifteen-year sentence for aliens reentering the country after being previously convicted of an aggravated felony, the INS incorrectly advised him that, upon reentry into the United States, he would be subject to only a two-year maximum term of imprisonment. Perez contends that the statement contained in Form I-294 amounts to an affirmative misrepresentation by the government of the consequences of reentry, and thus sentencing him beyond two years violates his right to due process under the Fifth Amendment.

We review de novo the district court's application of constitutional standards to Perez's claim. United States v. Shaw, 920 F.2d 1225, 1228 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2038, 114 L.Ed.2d 122 (1991). As authority for the argument that imposing a sentence in excess of two years violates due process, Perez cites several cases which hold that a criminal conviction must be overturned when the government had expressly advised a defendant that the conduct he was later convicted of was lawful. See United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 672, 93 S.Ct. 1804, 1816, 36 L.Ed.2d 567 (1973) (overturning conviction of corporation for violation of environmental statute because it was not allowed to prove that it reasonably relied on current, published regulations promulgated by the Army Corps of Engineers which indicated that its conduct was lawful); Cox v. Louisiana, 379 U.S. 559, 570, 85 S.Ct. 476, 484, 13 L.Ed.2d 487 (1965) (overturning conviction of demonstrator for violating statute prohibiting picketing "near" a courthouse where "the highest police officials of the city, in the presence of the Sheriff and Mayor" informed demonstrators that they could gather in precise spot where they were arrested); Raley v. Ohio, 360 U.S. 423, 437-40, 79 S.Ct. 1257, 1266-67, 3 L.Ed.2d 1344 (1959) (overturning contempt convictions based on failure to answer legislative committee's questions where chairman of committee expressly informed defendants that they could invoke privilege against self-incrimination; noting, inter alia, that sustaining conviction would "sanction the most indefensible sort of entrapment by the State").

In all of the cases relied upon by Perez, the government misled the defendant about the legality of certain conduct. And, when a defendant is not provided with "fair warning as to what conduct the Government intended to make criminal, ... traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution." Pennsylvania Industrial, 411 U.S. at 672-76, 93 S.Ct. at 1816-17 (emphasis added). Unlike the cases cited above, however, the INS did not inform Perez that reentry into the United States was lawful. On the contrary, Form I-294 expressly stated that reentry without permission was "a felony." Thus, prior to reentering the United States Perez had fair warning that the conduct he contemplated was a felony, and decided to enter the United States nonetheless.

As further support for his argument, Perez cites a number of cases holding that the punishment authorized for violation of a criminal statute must be clearly defined. See United States v. Batchelder, 442 U.S. 114, 121, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979); United States v. Harris, 932 F.2d 1529, 1536 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 270, 116 L.Ed.2d 223 (1991); Shaw, 920 F.2d at 1228. All of the cases relied upon by Perez, however, concern whether the punishment authorized for violation of a criminal statute is clearly delineated within the statute itself. Although "vague sentencing provisions may post [sic] constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute," Batchelder, 442 U.S. at 123, 99 S.Ct. at 2204, Form I-294 is not a criminal statute. Hence, the defect Perez complains of lies not in the underlying statute, but rather in a provision of a document with no relevant legal force. As Perez concedes, section 1326 clearly and unambiguously articulated the penalties associated with a reentry offense. Thus, regardless of the inaccuracy of Form I-294, the statute under which Perez was convicted provided notice adequate to satisfy the requirements of due process. ⁴ Indeed, a penalty not provided for in the statute of conviction is adequately noticed by being called for in a separate statute. See United States v. Camacho-Dominguez, 905 F.2d 82, 84 (5th Cir.1990).

Though Perez's argument is cast in terms of due process, its substance is one of estoppel. Cf. Heckler v. Community Health Services of Crawford, 467 U.S. 51, 59 & n. 12, 104 S.Ct. 2218, 2224 & n. 12, 81 L.Ed.2d 42 (1984). Estoppel against the government is problematical at best. See Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990). "[I]t is well settled that the Government may not be estopped on the same terms as any other litigant," and thus it necessarily follows that if estoppel were to be available against the government at all it would "at least" require demonstrating all the traditional equitable prerequisites. Community Health Services of Crawford, 467 U.S. at 59, 104 S.Ct. at 2224. Those prerequisites include,...