U.S. v. Sosa-Carabantes

• Decision Date: 01 April 2009
• Docket Number: No. 08-4109.,08-4109.
• Citation: 561 F.3d 256
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Gonzalo SOSA-CARABANTES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

561 F.3d 256

UNITED STATES of America, Plaintiff-Appellee, v. Jose Gonzalo SOSA-CARABANTES, Defendant-Appellant.

No. 08-4109.

United States Court of Appeals, Fourth Circuit.

Argued: January 30, 2009.

Decided: April 1, 2009.

ARGUED:

Matthew Segal, Federal Defenders Of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

ON BRIEF:

Claire J. Rauscher, Executive Director, Steven Slawinski, Federal Defenders Of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before SHEDD and AGEE, Circuit Judges, and ARTHUR L. ALARCÓN, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Vacated and remanded by published opinion. Senior Judge ALARCÓN wrote the opinion, in which Judge SHEDD and Judge AGEE concurred.

OPINION

ALARCÓN, Senior Circuit Judge:

Appellant, Jose Sosa-Carabantes ("Sosa") appeals from the district court's imposition of a two-point enhancement pursuant to United States Sentencing Guidelines § 4A1.1 (e) ("U.S. S.G. § 4A1.1 (e)") relating to the sentence imposed for his conviction under 8 U.S.C. § 1326. Sosa contends that at the time Immigration and Customs Enforcement ("ICE") found him, for purposes of § 1326, he had not yet been sentenced and the two-point enhancement should not have been applied. We hold that when an Immigration Detainer-Notice of Action, Form I-247 ("Immigration Detainer"), is issued by a local law enforcement officer who is a participant in the cross-designation program, under 8 U.S.C. § 1357(g), ICE has actual knowledge that the immigrant is in the United States and, thus, has "found" the immigrant for purposes of 8 U.S.C. § 1326. In this case, ICE found Sosa prior to his state court conviction or sentence and, consequently, the two-point enhancement was improperly applied. We remand for resentencing in accordance with the views expressed in this opinion.

I

Appellant Sosa is a citizen of El Salvador. The United States deported Sosa on May 15, 2003. Some time after that, Sosa illegally reentered the United States. On March 3, 2007, Sosa was arrested in Mecklenburg County, North Carolina for assaulting a child under twelve. He was transported to the Mecklenburg County Jail.

ICE and the Mecklenburg County Sheriff's Office work together pursuant to § 287(g) of the Immigration and Nationality Act ("the 287(g) Program"). Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. 104-208, 110 Stat. 3009-546 (1996), codified at 8 U.S.C. § 1357(g) (2000).¹ The 287(g) Program permits ICE to deputize local law enforcement officers to perform immigration enforcement activities pursuant to a written agreement. 8 U.S.C. § 1357(g)(1). ICE trains the local law enforcement officers who participate in the 287(g) Program. 8 U.S.C. § 1357(g)(2). These officers are subject to the supervision of the U.S. Attorney General for their activities under the act. 8 U.S.C. § 1357(g)(3).²

On February 27, 2006, ICE and the Mecklenburg County Sheriff's Office entered into an agreement pursuant to the 287(g) Program. Twelve deputies in the Mecklenburg County Sheriff's Office were certified under the 287(g) Program. These deputies were authorized to screen individuals arrested in Mecklenburg County for immigration violations. As part of the 287(g) Program, the Mecklenburg County Sheriff's Office had access to ICE's databases of fingerprints and photographs to determine an arrestee's immigration status.

After Sosa was arrested on March 3, 2007, the ICE office in Charlotte, North Carolina sent an Immigration Detainer to the Mecklenburg County Jail. Carl Smith, who identified himself as "Deputy Sheriff 287g," signed the Immigration Detainer. The Immigration Detainer stated that ICE had initiated an investigation to determine whether Sosa was subject to removal, and directed the Mecklenburg County Jail to hold Sosa for 48 hours to provide ICE adequate time to assume custody of Sosa. The Immigration Detainer contained Sosa's full name, birth date, nationality, and "A-file" number.³

On May 15, 2007, Sosa was convicted in state court of assaulting a minor under the age of twelve. He was sentenced to serve 150 days of imprisonment. Sosa was released on July 30, 2007 and transferred directly to ICE's custody. In the Record of Deportable/Inadmissible Alien, Form I-213, completed on July 30, 2007, Mark Smith, who identified himself as "Deputy Sheriff—ICE 287(g)," wrote: "On 03/03/2007 [Sosa] was arrested ... transported to the Mecklenburg County Jail in Charlotte, NC where being encountered by Sheriff's Deputies pursuant to the 287(g) program. Subject was determined to be in the United States in violation of the Immigration and Nationality Act."

ICE Special Agent Darren Vazquetelles received Sosa's immigration file on August 3, 2007. He concluded that there was probable cause to believe Sosa reentered the United States illegally. He filed a complaint on August 8, 2007, which alleges that Sosa illegally reentered the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). Special Agent Vazquetelles's affidavit in support of the complaint states that the Mecklenburg County Sheriff's Office provided information to ICE on August 3, 2007 that indicated Sosa was a positive match of a previously deported felon.

Sosa was indicted on August 29, 2007. The indictment alleged that Sosa unlawfully reentered, or was found in, the United States on or about August 3, 2007 in Mecklenburg County, North Carolina. On September 7, 2007, Sosa pled guilty to violating 8 U.S.C. § 1326(a) and (b)(2).

The district court held a sentencing hearing on September 11, 2007. Over Sosa's objection, the district court included a two-point enhancement, pursuant to U.S.S.G. § 4A1.1(e),⁴ and sentenced Sosa to 46 months' imprisonment, the low end of the Guidelines range, Offense Level 17, Criminal History Category V.⁵ Sosa filed a timely appeal from the district court's judgment.

A

In his appeal, Sosa contends that the district court erred in applying the enhancement under U.S.S.G. § 4A1.1(e) because ICE, through the 287(g) Program, knew of his illegal status on the day he was arrested. "In assessing a challenge to a sentencing court's application of the Guidelines, we review the court's factual findings for clear error and its legal conclusions de novo." United States v. Allen, 446 F.3d 522, 527 (4th Cir.2006) (citing United States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir.2005)).⁶

B

Pursuant to U.S.S.G. § 4A1.1(e), the district court applied a two-point enhancement to Sosa's sentence for illegally reentering the United States, a violation of 8 U.S.C. § 1326. Section 1326 reads, in pertinent part, as follows:

Any alien who (1) has been ... deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding and thereafter (2) enters, attempts to enter, or is at any time found in, the United States ... shall be fined under Title 18, or imprisoned not more than 2 years, or both.

8 U.S.C. § 1326(a)(1)-(2) (emphasis added). The Government charged Sosa with being found in the United States after being deported or removed.

U.S.S.G. § 4A1.1(e) provides as follows:

Add 2 points if the defendant committed the instant offense⁷ less than two years after release from imprisonment on a sentence counted under (a) or (b)⁸ or while in imprisonment or escape status on such a sentence. If 2 points are added for item (d), add only 1 point for this item.

(Emphasis added.) Thus, whether or not U.S.S.G. § 4A1.1(e) was properly applied depends on when ICE found Sosa. The two possible dates are March 3, 2007, when a participant in the 287(g) Program signed a receipt of the Immigration Detainer, or August 3, 2007 when Special Agent Vazquetelles received Sosa's immigration file. The date Sosa was found in the United States is dispositive because if he was found on March 3, 2007, the U.S.S.G. § 4A1.1(e) enhancement would not apply, as he had not yet been sentenced for any crime.

The day Sosa was arrested, March 3, 2007, ICE served an Immigration Detainer on the Mecklenburg County Jail. The Immigration Detainer identified Sosa by name, birth date, place of birth, and A-file number. Moreover, a local officer, who was certified to perform immigration enforcement duties pursuant to the 287(g) Program, signed the Immigration Detainer. Accordingly, ICE possessed the information necessary to determine Sosa's immigration status on March 3, 2007 because the acts of such a 287(g) Program officer are the acts of ICE. The information provided to the Mecklenburg County Sheriff's Office was sufficient to identify Sosa as an illegal alien. Because the Sheriff's Office participates in the 287(g) Program, ICE had notice of Sosa's illegal status on March 3, 2007.

The Government asks this court to disregard the information in the Immigration Detainer because it was issued prior to a complete investigation. It argues:

On its face, [an Immigration Detainer] suggests that the investigation will be completed in a timely fashion, but holding the detainee for 48 hours is the minimum required of the custodial entity. What the detainer does not say is that the investigation will be completed within that time period.... Sosa points to no case or regulation or contract that indicates that the investigation must occur within a certain time.

Appellee's Br. 6 (citations omitted, emphasis in original). This argument completely ignores the fact that an officer participating in the 287(g) Program was aware that Sosa was in the country illegally on March 3, 2007 because of the information set forth in the Immigration Detainer.

The Government also asserts that there is no evidence in the record that ICE actually investigated or became aware of...