U.S. v. Troncoso, 93-2130

• Citation: 23 F.3d 612
• Decision Date: 02 May 1994
• Docket Number: No. 93-2130,93-2130
• Parties: UNITED STATES, Appellee, v. Radhame TRONCOSO, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 612

23 F.3d 612

UNITED STATES, Appellee, v. Radhame TRONCOSO, Defendant, Appellant.

No. 93-2130.

United States Court of Appeals First Circuit.

Heard May 2, 1994.

Decided May 18, 1994.

Gordon R. Blakeney, Jr., Concord, NH, by Appointment of the Court, for appellant.

Jean B. Weld, Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief for appellee.

Before SELYA and BOUDIN, Circuit Judges, and CARTER, ^* District Judge.

GENE CARTER, Chief District Judge.

Radhame Troncoso appeals his conviction and sentence for illegal reentry into the United States after having been deported subsequent to conviction for an aggravated felony, 8 U.S.C. Sec. 1326(b)(2). We affirm.

I. FACTUAL BACKGROUND

Appellant, Radhame Troncoso, from the Dominican Republic, has been convicted several times of drug trafficking and other related offenses in the United States. The conviction most relevant to this appeal took place on January 25, 1988, when Appellant was convicted in a Massachusetts state court on charges including possession of cocaine with intent to distribute. Appellant served his prison sentence and was then turned over to officials of the Immigration and Naturalization Service ("I.N.S.") who deported him on several grounds, including conviction of a drug trafficking offense. The deportation occurred on October 26, 1988. At that time, the I.N.S. warned Appellant that if he returned to the U.S. within five years, he would be guilty of a felony and subject to up to two years in prison as provided for by section 1326, before that section was amended by the Anti-Drug Abuse Act of 1988. 8 U.S.C. Sec. 1326. ¹

Appellant did return undetected to the United States at some point and was convicted in New York on August 29, 1991, on drug-related charges but was not deported following his incarceration. ² He was later arrested in New Hampshire on October 30, 1992, convicted of selling cocaine, and received a suspended sentence in April of 1993. He was also charged with violating section 1326(b)(2) based on his earlier deportation in connection with the January 25, 1988, conviction. Section 1326(b)(2), which had been amended since Appellant's conviction and deportation, enhanced the maximum penalty for unlawful reentry from two to fifteen years for aliens who had been deported subsequent to conviction for committing an aggravated felony. See 8 U.S.C. Sec. 1326(b)(2) (Supp.1993). On August 30, 1993, Appellant was convicted and sentenced to 60 months in prison.

II. DISCUSSION

Appellant challenges the district court's denial of his motion to dismiss the indictment, arguing that Congress did not intend for section 1326(b)(2), as amended by the Anti-Drug Abuse Act of 1988, to apply retroactively to persons who were convicted and deported prior to the Act's effective date. 8 U.S.C. Sec. 1326(b)(2). Appellant argues, in the alternative, that applying section 1326(b)(2) retroactively to his case violates the ex post facto Clause of the United States Constitution. U.S. Const. art. I, Sec. 9, cl. 3. He also argues that the doctrines of equitable estoppel and estoppel by entrapment bar the court, as a matter of law, from sentencing him beyond a two-year term of imprisonment in light of the representations made by I.N.S. agents at the time of his deportation. Lastly he argues that the district court erred by treating his New Hampshire state conviction as a "prior sentence," rather than as part of the instant offense of violating section 1326(b)(2), pursuant to section 4A1.2(a)(1) of the Sentencing Guidelines. U.S.S.G. Sec. 4A1.2(a)(1).

A. Statutory Construction

Appellant's first argument focuses on Congressional intent with respect to the retroactive application of section 1326(b). 8 U.S.C. Sec. 1326(b). ³ Section 1326(b) was added to the Immigration and Nationality Act ("INA") on November 18, 1988, when Congress enacted the Anti-Drug Abuse Act of 1988 ("ADAA"). See Pub.L. 100-690, Title VII, Subtitle J, Sec. 7345(a), 102 Stat. 4471 (codified as amended at 8 U.S.C. Sec. 1326(b)(1988)). Apart from the statutory text, the Act provided that the amendment adding section 1326(b) "shall apply to any alien who enters, attempts to enter, or is found in, the United States on or after the date of the enactment of this Act." The ADAA also added a provision to the INA defining the new term of "aggravated felony" to include murder, illicit trafficking in any controlled substance, money laundering, and crimes of violence carrying at least 5 years of imprisonment. See Pub.L. 100-690, Title VII, Subtitle J, Sec. 7342, 102 Stat. 4469 (codified as amended at 8 U.S.C. Sec. 1101(a)(43) (1988)). The Act did not include a section limiting the temporal applicability of the "aggravated felony" definition.

The parties do not dispute that Appellant's drug conviction, which precipitated his deportation on October 26, 1988, falls into the definition of "aggravated felony" in section 1101(a)(43). 8 U.S.C. Sec. 1101(a)(43). The issue in dispute is whether Congress intended for section 1326(b)(2), as it incorporates section 1101(a)(43), to apply retroactively to an alien who was convicted and deported prior to the ADAA amendments. In Matter of A-A-, Interim Dec. 3176 (BIA 1992), the Board of Immigration Appeals interpreted the plain language of the amended provisions, along with the applicability section accompanying section 1326(b), and concluded that the enhanced fifteen-year criminal penalty is:

applicable to 'any alien who enters, attempts to enter or is found in, the United States on or after the date of enactment of [the November 18, 1988] Act.' ... For an alien reentering the United States on November 18, 1988, to be subject to these criminal penalties, the alien would need to have suffered a conviction and deportation before November 18, 1988. It would be virtually impossible for an alien convicted of an aggravated felony to reenter or be found in the United States on the date of enactment unless the definition of aggravated felony included convictions occurring before that date.

This Court adopted the BIA's reasoning in Barreiro v. I.N.S., 989 F.2d 62 (1st Cir.1993) (upholding the retroactive application of the aggravated felony definition as it was incorporated into a "waiver of deportation" provision, serving to bar a seven-year domiciliate from seeking a waiver from deportation pursuant to section 212(c) of the INA, 8 U.S.C. Sec. 1182(c) (Supp.1992)). In a case very similar to the facts at hand, U.S. v. Forbes, 16 F.3d 1294 (1st Cir.1994), this Court upheld a conviction under section 1326(b)(2) based on aggravated felony convictions that occurred prior to the effective date of the ADAA amendments. In oral argument, Appellant was unable to point to any case law in support of his position that section 1326(b)(2) was not intended to be applied retroactively. Given the law of this circuit and the plain meaning of the provision, we affirm the district court's application of section 1326(b)(2) to Appellant's conviction.

B. Alleged Ex Post Facto Violation

Appellant argues that even if Congress intended for section 1326(b)(2) to be applied retroactively, the effect of retroactive application in his situation results in a violation of the ex post facto provision of the Constitution. See U.S. Const. art. I, Sec. 9, cl. 3 (barring the retrospective application of laws that materially disadvantage a defendant). Appellant argues that the Government failed to present evidence ruling out the possibility that he returned to the United States subsequent to his October, 1988, deportation but prior to November 18, 1988, when the ADAA amendments went into effect. He argues that an ex post facto violation has occurred with respect to him and the class of convicted-and-deported aliens who were in the country on the date of enactment because "such a person's status is changed, and liability thus increased, by an act, of the legislature, of which such persons had no notice, nor opportunity to avoid, even given such notice." Appellant's Brief at 27.

In Forbes, this Court held that the inclusion of a defendant's prior drug convictions to trigger the enhanced criminal penalties of section 1326(b)(2) did not violate the ex post facto Clause, where the convictions had been obtained prior to the ADAA amendments. Forbes, 16 F.3d at 1301-02. Citing Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), this Court reasoned that the enhanced fifteen-year penalty applies to the crime of unlawful reentry and does not increase the punishment for crimes committed prior to the ADAA amendments. Id. at 1302. Appellant distinguishes his situation by pointing out that the appellant in Forbes committed the offense of unlawful reentry after the amended section went into effect, whereas Appellant may have committed the offense of unlawful reentry prior to the ADAA amendments. But section 1326(a)(2) defines the criminal conduct more expansively to include entry, attempted reentry, or being found in the United States without permission. Appellant was indicted and convicted of "being found in the United States" in violation of section 1326(b)(2). His offense occurred on October 30, 1992, well after the ADAA amendments and not on the date of his undetected reentry. Hence, Appellant fails to satisfy a critical element for establishing that a criminal law has ex post facto effect; he fails to demonstrate that the law is "retrospective, that is, it must apply to events occurring before its enactment." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); see also U.S. v. Alvarez-Quintero, 788 F.Supp. 132 (D.R.I.1992) (finding no ex post facto violation where court applied an amended Sentencing Guideline increasing the penalty for reentry of an alien deported for an aggravated felony, even when reentry predated the amended Guideline, because the section 1326(b)(2) offense occurred on the date the alien was found in the United States and...