U.S. v. Principe, 99-10848

• Decision Date: 11 February 2000
• Docket Number: No. 99-10848,99-10848
• Citation: 203 F.3d 849
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIA LUISA PRINCIPE, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 849

203 F.3d 849 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIA LUISA PRINCIPE, Defendant-Appellant.

No. 99-10848

UNITED STATES COURT OF APPEALS, Fifth Circuit

February 11, 2000

Rehearing Denied March 15, 2000.

Appeal from the United States District Court for the Northern District of Texas

Before KING, Chief Judge, and DUHE and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-appellant Maria Luisa Principe appeals from the sentence imposed by the district court following her pleading guilty, pursuant to a plea agreement, to two counts of knowingly possessing counterfeit alien registration receipt cards in violation of 18 U.S.C. 1546(a).

I. BACKGROUND

Following execution of a search warrant and during a search of Principe's residence on January 29, 1999, INS agents recovered among other things, three fraudulent alien registration receipt cards and two fraudulent social security cards from Principe's purse. The first card featured Principe's photograph and was in the name of Laura Castanon. A second card also featured Principe's photograph, but was in the name of Victoria Rodriguez. And a third card was in the name of Reginaldo Gallardo. The two social security cards recovered from Principe's purse were in the names of Laura Castanon and Victoria Rodriguez. Also recovered during the search of Principe's residence were 18 fraudulent but blank INS notice of action forms (form no. 1-797C) used for obtaining replacement alien registration receipt cards; 3 fraudulent Mexican birth certificates in the name of Rick Meza; 4 fraudulent but blank Mexican birth certificates; 17 fraudulent but blank Mexican entry forms (form no. F.M.6); 15 fraudulent but blank Mexican military service booklets; and 19 fraudulent Certificates of Naturalization. All told, 90 fraudulent documents were found at Principe's home. Before executing the search warrant, the agents determined that Principe was a lawful resident alien.

On April 20, 1999, a six-count superseding indictment was returned against Principe. That indictment charged Principe with one count of encouraging an alien to illegally enter the United States in violation of 8 U.S.C. 1324(a)(1)(iv); two counts of possessing a fraudulent alien registration receipt card in violation of 18 U.S.C. 1546(a); one count of possession of forged Immigration and Naturalization documents in violation of 18 U.S.C. 1546(a); one count of possession of five or more false identification documents in violation of 18 U.S.C. 1028(a)(3); and one count of possession of counterfeit naturalization documents in violation of 18 U.S.C. 1426(c). Pursuant to a plea agreement, Principe entered a guilty plea to the two counts charging her with possession of fraudulent alien registration receipt cards (counts two and three) and all remaining counts were dismissed at the time of her sentencing on July 16, 1999.

At sentencing, the district court permitted the government to call as a witness, Special Agent Edward Koranda of the Immigration and Naturalization Service ("INS"), and over the objections of Principe's counsel, Agent Koranda testified regarding his opinion of the potential uses Principe had for the two fraudulent alien registration receipt cards featuring her photograph. He testified that she could have: (1) given the cards to someone who looked like her; (2) used the cards as examples of the quality of fraudulent card she could obtain for others; or (3) used the cards herself to conceal her identity in the event she were apprehended smuggling aliens into the United States (i.e., if caught, she would produce the fake registration cards and be deported as Laura Castanon or Victoria Rodriguez, and then later return to the United States under her own name using her valid registration card). On cross-examination, Koranda conceded that he considered more than just the two fraudulent alien registration cards mentioned in the indictment and the factual resume to formulate his opinions.¹ He also testified that up until the week before sentencing he had consistently told the United States Attorney's office that he believed Principe had the cards for only the third use he testified to, that is, that Principe had the cards to use as false identification in the event she was apprehended smuggling illegal aliens into the United States.

At sentencing, Principe maintained that she had the two alien registration receipt cards only for the purpose of securing employment in the United States during the time she was waiting for her own legitimate registration receipt card to be processed. The district court however, considering the INS agent's testimony and all of the references in the pre-sentence report ("PSR") to the other fraudulent documents retrieved from Principe's residence, adopted the recommendation of the United States Probation Office that Principe be sentenced under U.S.S.G. 2L2.1, which guideline deals with, among other things, trafficking in documents related to naturalization, citizenship, or legal resident status.² The district court overruled Principe's objection to the use of 2L2.1 (with a base offense level of 11) and rejected her argument that 2L2.2 (with a base offenses level of 8), dealing with the fraudulent acquisition of documents related to naturalization, citizenship, or legal resident status for one's personal use was the more appropriate guideline to use in determining the sentence to be imposed. Principe has timely appealed her sentence, arguing that the district court improperly utilized 2L2.1, rather than 2L2.2.

II. DISCUSSION

The sole issue before us is whether the district court erred in sentencing Maria Luisa Principe under U.S.S.G. 2L2.1 rather than under U.S.S.G. 2L2.2. We review a district court's selection of the applicable sentencing guideline de novo. See United States v. Hornsby, 88 F.3d 336, 338 (5th Cir. 1996). After carefully reviewing the record in this case, and for the reasons discussed below, we find that the district court committed reversible error in sentencing Principe under 2L2.1 rather than 2L2.2.

When sentencing a defendant, the district court must first determine which offense guideline section is most applicable to the offense of conviction, generally by reference to the guidelines' statutory index found at Appendix A thereto. See U.S.S.G. 1B1.2(a), comment 1. If more than one offense guideline section is referenced for a particular statute, the district court must select the most appropriate section based upon the nature of conduct charged in the count for which the defendant was convicted. See id.; see also United States v. Beard, 913 F.2d 193 (5th Cir. 1990).

In this case, the district court was faced with the dilemma of choosing between two competing offense guidelines sections, both of which were made applicable by the guidelines' statutory index to 18 U.S.C. 1546(a). The first, 2L2.1, deals with "trafficking" in documents relating to naturalization, citizenship, or legal resident status and carries a base offense level of 11. The second, 2L2.2, deals with fraudulent acquisition of documents relating to naturalization, citizenship, or legal resident status for one's "own use" and carries a base offense level of 8. Thus, in order to determine which offense guideline section to apply when sentencing Principe, the district court was required to select the most appropriate of the two applicable sections based upon the nature of conduct charged in the counts for which she pleaded guilty and was convicted.

As a preliminary matter, we note that the first three paragraphs of 18 U.S.C 1546(a), to which Principe twice pleaded guilty, provide as follows:

(a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or

Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents; or

Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorized by law to receive such document; or

....

18 U.S.C. 1546(a).

Clearly this statute is designed to punish several types of conduct. Those acts described in the first paragraph revolve around a defendant's individual...