US v. Crawford, Crim. No. 91-137-N.

• Decision Date: 18 March 1993
• Docket Number: Crim. No. 91-137-N.
• Citation: 815 F. Supp. 920
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Casey Andrew CRAWFORD, Defendant.

815 F. Supp. 920

UNITED STATES of America, v. Casey Andrew CRAWFORD, Defendant.

Crim. No. 91-137-N.

United States District Court, E.D. Virginia, Norfolk Division.

March 18, 1993.

Alan M. Salsbury, Asst. U.S. Atty., Norfolk, VA, for U.S.

H. Kowalchick, Norfolk, VA, for Casey A. Crawford.

MEMORANDUM OPINION AND ORDER

PAYNE, District Judge.

On October 5, 1992, a jury convicted Casey Andrew Crawford of unauthorized reentry into the United States by a previously deported alien in violation of 8 U.S.C. § 1326(a). Sentencing was set for December 14, 1992. The sentencing hearing began on that date but was continued until March 9, 1993 to allow briefing primarily on the following issues: (1) whether 8 U.S.C. § 1326(b), which establishes greater maximum sentences for certain aliens "described in" § 1326(a), is a sentence enhancement provision for persons convicted under § 1326(a) or whether § 1326(b) defines a separate offense, the elements of which must be alleged in the indictment and proven at trial; and (2) whether the calculation of Crawford's base offense level and criminal history category in the Pre-Sentence Report ("PSR") was based on improper "double counting."

For the reasons set forth below, the court concludes that § 1326(b) is sentence enhancement provision and that the challenged calculations in the PSR are correct.

STATEMENT OF FACTS

Crawford, a native of Jamaica, originally entered this country as an immigrant on July 2, 1980. Based on numerous misdemeanor offenses, Crawford was ordered deported after a deportation hearing held on March 27, 1989. Although Crawford was notified of the hearing date and was represented by counsel at the hearing, Crawford did not attend. Following entry of the deportation order, the Immigration and Naturalization Service ("INS") did not locate Crawford until he was arrested by police in Portsmouth, Virginia on August 20, 1990 for a misdemeanor narcotics violation. In September 1990, the Portsmouth authorities turned Crawford over to the INS.

While the INS was preparing to deport Crawford, authorities in Southhampton County, Virginia, notified the INS that Crawford was wanted there under an outstanding felony warrant for possession of cocaine with the intent to distribute. Pursuant to INS policy, the INS turned Crawford over to the local authorities upon their request. On November 15, 1990, Crawford was convicted in state court of possession with intent to distribute cocaine, an aggravated felony. Crawford was sentenced to ten years imprisonment. Four years of that sentence were suspended, and the state court ordered that Crawford be placed on four years supervised probation upon his release.

Although the INS filed a detainer so that Crawford could be deported following his release from prison, Crawford was paroled by local authorities to the Newport News pre-release program on December 6, 1991. Two days later, however, Crawford fled. On January 10, 1992, INS agents arrested Crawford in Portsmouth, Virginia and deported him almost two weeks later on January 23, 1992.

On April 1, 1992, Crawford reentered the United States. Crawford was arrested on July 23, 1992, and charged in a one count indictment with reentering the United States without authorization after having been arrested and deported, in violation of 8 U.S.C. § 1326. Upon instructions requested by the government and agreed to by the defendant, the jury was told that the government must prove beyond a reasonable doubt:

First, ... that the defendant was an alien at the time alleged in the indictment; second, that the defendant previously had been arrested and deported from the United States; third, ... that thereafter the defendant unlawfully entered or was found unlawfully present in the United States; and fourth, that the defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of the defendant's previous deportation.

The jury returned a verdict of guilty and sentencing was set for December 14, 1992.

The PSR prepared for Crawford's sentencing recommended an offense level of 24, consisting of a base offense level of 8 and a 16 point enhancement for deportation after conviction for an aggravated felony. See § 2L1.2(b)(2) of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). The aggravated felony that provided the basis for the enhancement under U.S.S.G. § 2L1.2(b)(2) was Crawford's state conviction in November 1990 for possession of cocaine with the intent to distribute. Two points were deducted for acceptance of responsibility, resulting in an adjusted base offense level of 22. The PSR also recommended a criminal history category of V based on 12 criminal history points. These calculations yielded a sentencing range of 77-96 months.

Like the Guidelines ranges, the statutory maximum sentences under 8 U.S.C. § 1326 are increased for individuals whose underlying deportation occurred subsequent to a felony conviction. Thus, an individual without a felony conviction who unlawfully reenters the country following arrest and deportation is subject to a maximum prison term of 2 years, see 8 U.S.C. § 1326(a), whereas individuals deported subsequent to a conviction for a felony or an aggravated felony who so reenter the country face maximum prison terms of 5 and 15 years, respectively. See 8 U.S.C. § 1326(b)(1) and (b)(2).

In the present case, the government neither alleged in the indictment nor proved at trial that Crawford had an aggravated felony conviction before his deportation. As a result, the maximum length of Crawford's incarceration turns on whether 8 U.S.C. § 1326(b)(2) provides a sentence enhancement or defines a separate offense. If the statute defines a separate offense, Crawford can be sentenced at most to 2 years imprisonment.

At the December 14 hearing, the court raised and requested briefs on this issue. In addition, Crawford contended, among other things, that the Probation Office engaged in impermissible "double counting" in calculating his recommended sentence. The court continued the sentencing until March 9, 1993 to allow the parties to submit briefs on these issues.¹

DISCUSSION

I. Sentence Enhancement or Element of the Offense.

To determine whether a statute is a sentence enhancement provision or defines a separate offense that must be alleged in the indictment and proved at trial, a court must examine the language, the structure, and the legislative history of the statute. See, e.g., United States v. Blannon, 836 F.2d 843, 844-45 (4th Cir.) (examining those factors in holding that Armed Career Criminal Act of 1984 created only a sentence enhancement, not a new offense), cert. denied, 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988). Because there is no legislative history on this aspect of 8 U.S.C. § 1326(b)(2), the court's analysis must focus on the language and structure of 8 U.S.C. § 1326. The court also can consider the title of the statute as an aid in clarifying ambiguity and in discerning the intent of the legislature. See 2A Sutherland Statutory Construction § 47.03 (5th ed. 1992).

Before amendment in 1988, 8 U.S.C. § 1326 provided in relevant part:

§ 1326. Reentry of deported alien

Any alien who —

(1) has been arrested and deported or excluded and deported, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless ... the Attorney General has expressly consented to such alien's reapplying for admission; or ... unless such alien shall establish that he was not required to obtain such advance consent

...

shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both.

8 U.S.C. § 1326 (1970 Bound Volume).

The statute was amended in 1988 (Pub.L. 100-690, Title VII, § 7345(a), 102 Stat. 4471) and again in 1990 (Pub.L. 101-649, Title V, § 543(b)(3), 104 Stat. 5059)², and now provides in pertinent part:

§ 1326. Reentry of deported alien; criminal penalties for reentry of certain deported aliens

(a) Subject to subsection (b) of this section, any alien who —

(1) has been arrested and deported or excluded and deported, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless ... the Attorney General has expressly consented to such alien's reapplying for admission; or ... unless such alien shall establish that he was not required to obtain such advance consent

...

shall be fined under Title 18, or imprisoned not more than two years, or both.

(b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection —

(1) whose deportation was subsequent to a conviction for commission of a felony (other than an aggravated felony), such alien shall be fined under Title 18, imprisoned not more than five years, or both; or

(2) whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 15 years, or both.

8 U.S.C. § 1326 (Cum.Supp.1992) (emphasis added).

The crux of the present dispute concerns the purpose and effect of the recently added subsection (b). By its terms, subsection (b), specifically § 1326(b)(2), applies "in the case of any alien described in ... subsection a" and "notwithstanding subsection (a)." The court notes that subsection (a) defines the offense of unlawful reentry into the United States by a previously deported alien. See 8 U.S.C. § 1326(a). Subsection (b) contains no language defining the offense to which its punishment provisions relate. Rather, it relates back to and incorporates subsection (a) for that purpose. Thus, subsection (b) is dependent on subsection (a) because subsection (b) applies only to "any alien described in subsection (a)", i.e., to any alien who has committed the offense of reentering the United States without...