U.S. v. Westcott, Docket No. 97-1451

• Decision Date: 03 November 1998
• Docket Number: Docket No. 97-1451
• Parties: UNITED STATES of America, Appellee, v. Bentley Washington WESTCOTT, also known as Barrington Glen Morrison, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 107

159 F.3d 107

UNITED STATES of America, Appellee, v. Bentley Washington WESTCOTT, also known as Barrington Glen Morrison, Defendant-Appellant.

Docket No. 97-1451.

United States Court of Appeals Second Circuit.

Argued Sept. 10, 1998.

Decided Nov. 3, 1998.

Robert E. Nicholson, Brooklyn, New York, for Defendant-Appellant.

Mary Jo White, United States Attorney for Southern District of New York (Steven P. Heineman, Dietrich L. Snell, Assistant United States Attorneys, New York, New York), for Appellee.

Before: FEINBERG, JACOBS and SACK, Circuit Judges.

SACK, Circuit Judge:

Bentley Washington Westcott appeals from the judgment of the United States District Court for the Southern District of New York (Sotomayor, J.) convicting him, pursuant to his guilty plea, of violating 8 U.S.C. § 1326 by reentering the United States without permission after having been deported, sentencing him to sixty months' imprisonment and three years' supervised release, and imposing a $50.00 special assessment.

At the time of his plea, the district court informed Westcott that he faced a maximum sentence of fifteen years' imprisonment under 8 U.S.C. § 1326(b)(2). Subsequently, as a result of authority called to the court's attention by Westcott, the court determined that he was subject not to § 1326(b)(2)'s fifteen year maximum but instead to § 1326(b)(1)'s five year maximum. See United States v. Westcott, 966 F.Supp. 186, 191-92 (S.D.N.Y.1997). Westcott contends that the district court thereby violated Fed.R.Crim.P. 11(c)(1) by failing to inform him correctly, prior to accepting his guilty plea, of the maximum sentence he faced.

Westcott's second argument challenges the district court's interpretation of § 2L1.2(b)(2) of the United States Sentencing Guidelines. Under the applicable version of that Guideline, sentencing courts are required to increase the offense level for a violation of § 1326 by sixteen levels if the defendant has been convicted of an "aggravated felony" prior to his deportation and subsequent reentry. Westcott contends that the district court erred in determining that his 1988 conviction for first-degree robbery under New York state law triggered this enhancement.

We affirm the judgment of the district court.

I. BACKGROUND

The few facts pertinent to this appeal are not in dispute. Westcott, a Jamaican national, first entered the United States in October 1974. On May 17, 1988, a New York state court convicted him of robbery in the first degree, which is defined by New York statute as "forcibly steal[ing]" property. N.Y. PENAL LAW § 160.15 (McKinney 1988). The court imposed a sentence of five and one-half to eleven years' imprisonment. After serving less than five years, Westcott was paroled and transferred into the custody of the Immigration and Naturalization Service. On May 20, 1993, he was deported to Jamaica.

Undaunted, Westcott reentered the United States in March 1994 using a falsified Jamaican passport. Within a year, he was arrested twice, on firearms and narcotics charges. Westcott's parole from his 1988 robbery conviction was therefore revoked.

On August 23, 1996, a federal grand jury issued a one count indictment charging Westcott with violating 8 U.S.C. §§ 1326(a) and (b)(2) by reentering the United States without the permission of the Attorney General (§ 1326(a)) after having been arrested and deported subsequent to the commission of an "aggravated felony" (§ 1326(b)(2)). On December 5, 1996, Westcott came before the district court to plead guilty to this charge. Before accepting his plea, the district judge informed Westcott that § 1326(b)(2) carried a maximum sentence of fifteen years' imprisonment, that his actual sentence would be determined in accordance with the Sentencing Guidelines, that the Government calculated the applicable Guideline range to be from seventy to eighty-seven months, and that he would not be permitted to withdraw his plea were the actual sentence to be outside of the predicted range. Westcott indicated that he understood.

Less than a month later, in a one page letter to the district court dated December 30, 1996, Westcott argued in substance that he could not be, or should not have been, prosecuted under § 1326(b)(2), which applies only to aliens deported after committing an "aggravated felony." He asserted that robbery in the first degree, the crime attributed to him in the indictment and that he acknowledged during his plea allocution, did not come within the applicable definition of "aggravated felony" at the time he committed and was convicted of it. In support, he cited, without elaboration, United States v. Gomez-Rodriguez, 77 F.3d 1150 (9th Cir.1996), later affirmed en banc, United States v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir.1996).

In the Gomez-Rodriguez panel decision, the Ninth Circuit held that the phrase "aggravated felony," as used in § 1326(b)(2), did not include crimes of violence, other than murder, that occurred prior to November 29, 1990. 77 F.3d at 1152-53. The panel reached that conclusion after examining 8 U.S.C. § 1101(a)(43), the statute providing the definition of "aggravated felony" as that phrase is used in § 1326(b)(2). Id. at 1152-53. Prior to passage of the Immigration Act of 1990 (the "Immigration Act"), § 1101(a)(43)'s definition of "aggravated felony" was limited to murder, certain drug and firearm trafficking crimes, and attempts and conspiracies to commit these crimes. See id. at 1152 (quoting Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 7342, 102 Stat. 4181, 4469-70 (1988)). In 1990, section 501(a) of the Immigration Act expanded this definition to include, inter alia, crimes of violence, as defined by 18 U.S.C. § 16, for which a sentence of at least five years was imposed. See id. (citing Immigration Act of 1990, Pub.L. No. 101-649, § 501(a), 104 Stat. 4978, 5048 (1990)). The expanded definition was subject, however, to an effective date provision stating that "[t]he amendments made by subsection (a) shall apply to offenses committed on or after the date of the enactment of this Act [November 29, 1990]." Pub.L. No. 101-649, § 501(b), 104 Stat. at 5048. ¹ The Ninth Circuit therefore concluded that the expansion of § 1101(a)(43)'s coverage did not apply retroactively to felonies committed prior to November 29, 1990. See 77 F.3d at 1151.

Having drawn the district court's attention to this decision in his letter, Westcott asked the court to "do what is just, fair and proper." He did not ask to withdraw his plea. In response, the district court invited counsel for the parties to brief and argue the issue Westcott had raised, which they did.

In an opinion dated April 30, 1997, United States v. Westcott, 966 F.Supp. 186 (S.D.N.Y.1997), on the issue of whether the effective date provision's reference to "offenses committed on or after [November 29, 1990]" depended on the date of the alleged "aggravated felony" or the date of the § 1326 violation, and therefore whether Westcott's 1988 robbery conviction constituted an "aggravated felony" for purposes of § 1326(b)(2), the district court found that the relevant statutes, their history, and the authorities interpreting them left the law ambiguous. Id. at 189-91. Judge Sotomayor therefore applied the rule of lenity, "requir[ing] the sentencing court to impose the lesser of two penalties where there is an actual ambiguity over which penalty should apply." Id. at 191 (quoting United States v. Canales, 91 F.3d 363, 367 (2d Cir.1996) (internal quotation marks omitted)). The court concluded, as Westcott had urged, that his 1988 robbery conviction was not an "aggravated felony" within the meaning of the statute. Id. at 191-92. Thus, the fifteen year maximum sentence provided by *111s 1326(b)(2) did not apply and the five year maximum sentence under § 1326(b)(1) did. See id.

The district court then considered U.S.S.G. § 2L1.2, which is applicable to all convictions under § 1326. It requires that the sentencing judge increase the defendant's offense level by sixteen levels "[i]f the defendant previously was deported after a conviction for an aggravated felony." U.S.S.G. § 2L1.2(b) (1991). This raised the question of whether Westcott's conviction for first-degree robbery in 1988, held not to be an "aggravated felony" under § 1326(b)(2) because the date of the conviction preceded the effective date of the amendment of the definition of "aggravated felony" applicable to the statute, was nonetheless an "aggravated felony" under § 2L1.2(b)(2). The court held that it was, noting that Application Note 7 to § 2L1.2 defines "aggravated felony" to include "any crime of violence (as defined in 18 U.S.C. § 16 ... ) for which the term of imprisonment imposed ... is at least five years.... See 8 U.S.C. § 1101(a)(43)," U.S.S.G. § 2L1.2, comment. (n.7) (1991), and that Westcott's 1988 robbery conviction plainly fit that definition. Westcott, 966 F.Supp. at 192-93. The court found, moreover, that nothing in § 2L1.2 or Application Note 7 suggested any intent to incorporate into the Guidelines' definition of "aggravated felony" the November 29, 1990 effective date applicable to the statutory definition of the same phrase. Id.

At Westcott's subsequent sentencing, on May 28, 1997, the district court adopted the Guidelines calculations set forth in the Presentence Report ("PSR"), finding a base offense level of eight under U.S.S.G. § 2L1.2, a sixteen level enhancement for the prior aggravated felony conviction under U.S.S.G. § 2L1.2(b)(2), and a three level reduction for acceptance of responsibility under U.S.S.G. §§ 3E1.1(a) and (b)(2). In addition, the district court departed downward one level because of Westcott's agreement not to oppose deportation. Westcott's resulting net offense level of twenty, when combined with his criminal history classification in Category V, earned him a sentencing range of sixty-three to seventy-eight months. Recognizing that § 1326(b)(1) provided a maximum...