U.S. v. Whittaker, 1485

• Decision Date: 09 July 1993
• Docket Number: No. 1485,D,1485
• Citation: 999 F.2d 38
• Parties: UNITED STATES of America, Appellee, v. Devon Anthony WHITTAKER, Defendant-Appellant. ocket 92-1732.
• Court: U.S. Court of Appeals — Second Circuit

Page 38

999 F.2d 38

UNITED STATES of America, Appellee, v. Devon Anthony WHITTAKER, Defendant-Appellant.

No. 1485, Docket 92-1732.

United States Court of Appeals Second Circuit.

Argued May 10, 1993.

Decided July 9, 1993.

Stephen R. Lewis, White Plains, NY (Stephens, Buderwitz, Baroni, Reilly, & Lewis, White Plains, NY, of counsel) for defendant-appellant, Devon Anthony Whittaker.

David L. Wales, Asst. U.S. Atty. S.D.N.Y., New York City (Roger S. Hayes, U.S. Atty., John W. Auchincloss, II, Asst. U.S. Atty. S.D.N.Y., New York City of counsel), for appellee, U.S.

Before: MINER, FRIEDMAN, ^* and McLAUGHLIN, Circuit Judges.

FRIEDMAN, Circuit Judge:

In this appeal, the appellant challenges on three grounds the sentence imposed following his conviction under a guilty plea to an information charging him with entering, attempting to enter, and being found in the United States without the permission of the Attorney General, in violation of 8 U.S.C. § 1326 (1988), after having been convicted of an aggravated felony and deported. First, he contends that the district court improperly applied the provision of an amended Sentencing Guideline that was adopted after he illegally reentered the United States, but before he was found there, which increased the offense level of the crime. The answer to whether that provision properly was applied turns on the meaning of section 1326, a question of first impression in this Court. Second, he argues that if the subsequent Guidelines provision applies in this case, then section 1326 is unconstitutionally vague as here applied. Third, he claims that the district court improperly refused a downward departure from the Guidelines. We reject all these contentions, and, therefore, affirm the conviction and sentence.

I

The facts, as set forth in the Presentence Report, are undisputed. In December 1986, the appellant Whittaker, an alien from Jamaica, was convicted in a New York State court of first degree manslaughter for stabbing his girlfriend to death in a bar and sentenced to five to fifteen years imprisonment. Following Whittaker's release from prison on parole in 1991, he was deported to Jamaica for having been convicted of an aggravated felony.

On October 23, 1991, Whittaker reentered the United States illegally through the Tampa Bay, Florida airport, relying upon documentation that contained his picture, but a false name.

On April 8, 1992, the Immigration and Naturalization Service (INS) arrested Whittaker in New York. He admitted that he had illegally entered the United States.

Three weeks later a single count felony information was filed against him in the Southern District of New York. The information charged that, between October 1991 and April 8, 1992, Whittaker had "enter[ed], and attempt[ed] to enter, and was found in the United States after having been arrested and deported from the United States subsequent to a conviction for commission of an aggravated felony and without having obtained the permission of the Attorney General of the United States to re-enter the United States," in violation of 8 U.S.C. § 1326. Whittaker pleaded guilty and the district court sentenced him to forty-six months in prison, followed by three years of supervised release.

In applying the Sentencing Guidelines, the court held that the applicable Guideline was the amended Guideline in effect when Whittaker was arrested on April 8, 1992, and not the earlier Guideline in effect when Whittaker illegally reentered the United States on October 23, 1991, as Whittaker contended. The amended Guideline substantially increased the offense level for the crime for which Whittaker was convicted. The district court also rejected Whittaker's request that it depart downwardly from the Guidelines.

II

A. Section 1326 of Title 8 of the United States Code makes it a felony for an alien who has been deported and, without the prior consent of the Attorney General,

(2) enters, attempts to enter, or is at anytime found in, the United States....

8 U.S.C. § 1326(a)(2).

The maximum penalty for an alien "whose deportation was subsequent to a conviction for commission of an aggravated felony" is a fine as provided in Title 18 of the United States Code and imprisonment for not more than fifteen years. Id. § 1326(b)(2).

The information in this case tracked the language of the Statute, except that it was in the conjunctive rather than the disjunctive. It charged that, from October 1991 to April 1992, Whittaker "did enter, and attempt to enter, and was found in the United States" after having been deported subsequent to a conviction for an aggravated felony and without the permission of the Attorney General to reenter the United States.

At the time Whittaker illegally entered the United States in October 1991, the applicable Guideline covering 8 U.S.C. § 1326 provided for a base offense level of eight and for a four-level increase "[i]f the defendant previously was deported after sustaining a conviction for a felony," U.S.S.G. § 2L1.2 (Nov. 1990), and provided that if the conviction was for "an aggravated felony as defined in 8 U.S.C. § 1101(a) ... an upward departure may be warranted." Id., comment. (n. 3).

This Guideline was amended effective November 1, 1991 to read: "If the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels." Id. § 2L1.2(b)(2) (Nov. 1991). An application note states that " 'Aggravated felony,' as used in subsection (b)(2), means murder ...; any crime of violence (as defined in 18 U.S.C. § 16, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years." Id., comment. (n. 7). The crime of which Whittaker was convicted was an aggravated felony because (1) it had as "an element the use ... of physical force against the person ... of another," 18 U.S.C. § 16(a) (1988), (stabbing his girlfriend to death) and (2) Whittaker was sentenced to five to fifteen years imprisonment.

Whittaker contends that the crime to which he pleaded guilty was committed and completed when he entered the United States illegally on October 23, 1991, and that determining his sentence by applying the amended Guideline that was in effect when he was "found" and arrested on April 8, 1992, constituted an ex post facto application of the Guidelines.

Although defendants normally are punished in accordance with the Guidelines in effect at the time of sentencing, 18 U.S.C. § 3553(a)(4) (1988), sentencing may not be based on an amendment to the Guidelines that became effective after the offense was committed and that would result in a harsher punishment. See, e.g., United States v. Rodriguez, 989 F.2d 583, 587 (2d Cir.1993) ("An ex post facto problem normally arises when the version of the Guidelines used at sentencing results in a more severe sentence than that which would have resulted had the Guidelines version in effect at the time of commission of the crime been applied."); United States v. Paccione, 949 F.2d 1183, 1204 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992). Thus, the critical issue is when the federal offense of which Whittaker was convicted was committed.

B. Whittaker contends that the crime to which he pleaded guilty was his reentering the United States on October 23, 1991. He relies upon the following colloquy with the court during the hearing at which his guilty plea was accepted:

THE COURT: Tell me what it is that you are pleading guilty to?

THE DEFENDANT: I am pleading guilty to re-entering the United States without the okay of the Attorney General and I know I am wrong to enter the United States. I am pleading guilty for that.

Prior to making that statement, however, Whittaker had the following exchange with the court:

THE COURT: Mr. Whittaker, you are charged in this felony information substantially as follows:

From October 1991 through April 1992, in this district, you unlawfully, wilfully and knowingly entered and attempted to enter and were found in the United States after having been arrested and deported from the United States subsequent to a conviction for commission of an aggravated felony and without obtaining the permission of the Attorney General to re-enter the United States.

Do you understand those charges?

THE DEFENDANT: Yes, sir.

THE COURT: And do you understand that if you plead guilty and are convicted, you may be sentenced to up to 15 years in prison or fined $250,000 or both, and that if you are imprisoned, there will be a period of supervised release after that imprisonment of up to three years and there will also be a special assessment of 50 dollars?

THE DEFENDANT: Yes, sir.

After the court stated that it would accept the plea, the clerk asked Mr. Whittaker, "You have heard the charges as explained to you by the Court. How do you plead?" Whittaker replied, "Guilty."

The information contained a single count, which charged Whittaker with entering, attempting to enter, and being found in the United States--the three situations the statute covers. The district court summarized to Whittaker the charge against him: that from October 1991 through April 1992, he "entered and attempted to enter and [was] found" in the United States after having been deported and without the permission of the Attorney General. Whittaker stated that he understood the charge and the maximum sentence he could receive "if you plead guilty and are convicted."

When Whittaker pleaded guilty, it was to the single offense with which he was charged and not just to part of it. See, e.g., United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989) ("By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime."); United States v. Morrison, 938 F.2d 168, 171 (10th Cir.1991) ("By pleading guilty, defendan...