US v. Vieira-Candelario, Cr. No. 92-044 P.

• Court: U.S. District Court — District of Rhode Island
• Writing for the Court: PETTINE, Senior
• Citation: 811 F. Supp. 762
• Parties: UNITED STATES of America, v. Aurelio VIEIRA-CANDELARIO.
• Docket Number: Cr. No. 92-044 P.
• Decision Date: 28 January 1993

811 F. Supp. 762

UNITED STATES of America,
v.
Aurelio VIEIRA-CANDELARIO.

Cr. No. 92-044 P.

United States District Court, D. Rhode Island.

January 28, 1993.

811 F. Supp. 763

Craig Moore, Asst. U.S. Atty., U.S. Attorney's Office, Providence, RI, for plaintiff.

Damon D'Ambrosio, Providence, RI, for defendant.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

The sentencing of Defendant Aurelio Vieira-Candelario raises a significant legal question of first impression in the First Circuit: whether 8 U.S.C. § 1326(a) and § 1326(b) set forth separate and distinct offenses or a single offense with different penalties depending on the defendant's criminal record?

Section 1326(a) makes it an offense punishable by not more than two years in prison for any alien who has been previously arrested and deported thereafter to "enter," "attempt to enter" or be "found in" the United States without the consent of the Attorney General. Section 1326(b) provides for imprisonment "in the case of any alien described in subsection (a)" (1) for not more than five years for those whose deportation was subsequent to a conviction for the commission of a felony and (2) for up to fifteen years for those whose deportation was subsequent to a conviction for the commission of an aggravated felony.¹

Defendant was charged with unlawful reentry following deportation in violation of § 1326 and pleaded guilty under an agreement with the United States. Applying the U.S. Sentencing Guidelines effective November 1, 1991, the Pre-Sentence Report calculated a sentencing range of between sixty-three (63) and seventy-eight (78) months. At sentencing, defendant objected to the Probation Officer's sentencing calculation on ex post facto grounds and as exceeding the two-year statutory maximum under § 1326(a).²

I

The salient facts are not in dispute. According to the Pre-Sentence Report, defendant is a native and citizen of the Dominican Republic. He entered the United States as a legal and resident alien on or about December 27, 1963. In 1988, defendant served six months at the Adult Correctional Institutions in Cranston, Rhode Island for a narcotic offense, after which he was transported to the Immigration and Naturalization Service ("INS") in Boston. In October, 1989, defendant was deported to the Dominican Republic.

According to defendant's own statement, after unsuccessful attempts to find work in the Dominican Republic, he returned to the

811 F. Supp. 764

United States via Puerto Rico "sometime in Autumn 1991." He rejoined his wife in Providence, Rhode Island, and resided with her until his arrest by INS agents on March 24, 1992

On April 2, 1992, a grand jury indicted defendant on one count of unlawful reentry into the United States following deportation. Specifically, the Indictment charged:

On or about March 24, 1992, AURELIA VIERA-CANDELARIA, an alien who had previously been arrested and deported from the United States, entered and was found in the District of Rhode Island without having obtained the express consent of the Attorney General of the United States to re-enter the United States.

In violation of Title 8 United States Code Section 1326. (emphasis added).

On August 11, 1992, following an unsuccessful attempt to dismiss the Indictment, defendant pleaded guilty. Pursuant to the terms of a Conditional Plea Agreement, defendant agreed to plead guilty "to the Indictment charging a violation of Title 8, United States Code, Section 1326(a) (unlawful re-entry by a deported alien)." In exchange, the Government agreed that his plea would be conditional, allowing him to appeal the Court's denial of his motion to dismiss the Indictment.

At sentencing, Defendant objected to the Pre-Sentence Report's sentencing calculations on two grounds. First, he argues that because he actually "re-entered" the United States in October of 1991, application of the United States Sentencing Guidelines as amended effective November 1, 1991 violates the Ex Post Facto Clause. Second, he contends that 8 U.S.C. § 1326 describes separate and distinct offenses and that he may only be sentenced up to the two year statutory maximum provided under § 1326(a).

II

A

The Ex Post Facto clause of the United States Constitution prohibits the retrospective application of criminal laws that materially disadvantage the defendant. See U.S. Const., Art. I, § 9, cl. 3; Art. 1, § 10, cl. 1. While the clause may literally be read to prohibit application of any law passed "after the fact," a long line of Supreme Court cases has established that the Ex Post Facto Clause applies only to criminal laws. See Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990) ("It has been long recognized by this Court that the Constitutional prohibition of ex post facto laws applies only to penal statutes which disadvantage the offender affected by them."). And, as defendant correctly notes, the circuits have uniformly held that retroactive application of substantive or offense level amendments to the U.S. Sentencing Guidelines which increase punishment violate the Ex Post Facto clause. See, e.g., United States v. Harotunian, 920 F.2d 1040, 1042 (1st Cir.1990); United States v. Schaper, 903 F.2d 891, 896 n. 4 (2d Cir.1990); United States v. Suarez, 911 F.2d 1016, 1020-22 (5th Cir.1990); United States v. Worthy, 915 F.2d 1514, 1516 n. 7 (11th Cir.1990).

Defendant's ex post facto claim rests primarily on the following theory: Because his deportation and unlawful re-entry occurred before the effective date of the November 1991 amendments to the Sentencing Guidelines, and because the amended Guidelines call for more severe penalties for unlawfully reentering aliens previously deported following aggravated felony convictions, he cannot be subject to the new Guidelines.

The Government argues, and I agree, that defendant's claim is indistinguishable from that raised by the defendant in United States v. Alvarez-Quintero, 788 F.Supp. 132 (D.R.I.1992). In Alvarez-Quintero, the defendant was convicted under 8 U.S.C. § 1326 of "being found" in the United States on November 19, 1991, after being deported subsequent to an aggravated felony conviction. At sentencing, he objected, on ex post facto grounds, to the application of the U.S. Sentencing Guidelines in effect as of November 1, 1991. He claimed that because his actual "re-entry" took place prior to November 1, 1991, only

811 F. Supp. 765

the previous, unamended Guidelines were applicable to his conduct

This Court rejected defendant's ex post facto claim. It found that because the Indictment charged defendant with "being found" in the United States under § 1326, and because the defendant was "found in" the United States on November 19, 1991, after the effective date of the November 1991 Amendments, sentencing under the amended guidelines was appropriate.

The facts of this case are identical. The defendant was charged with "being found" in the United States on March 24, 1992, in violation of § 1326. Defendant does not dispute that he was arrested by INS agents on March 24, 1992, but merely alleges that he entered the country "sometime in Autumn of 1991," before the effective date of the November 1991 amendments. I find that the Indictment properly charged defendant with "being found" in the United States on March 24, 1992, after the effective date of the November 1991 amendments. Therefore, sentencing under the current guidelines is appropriate and does not raise ex post facto concerns.

B

Defendant's second objection to the Pre-Sentence Report, that § 1326 describes separate and distinct offenses and that he may only be sentenced up to the two-year statutory maximum under § 1326(a), presents a more difficult issue. In opposition, the Government primarily argues that § 1326 describes only a single offense with provision for enhanced penalties according to a defendant's criminal record.

The First Circuit has yet to address the question whether § 1326(a) and § 1326(b) describe separate and distinct offenses with different elements and maximum penalties, or a single offense with differing penalties based upon a defendant's criminal history. A recent Ninth Circuit decision, however, is directly on point. In United States v. Campos-Martinez, 976 F.2d 589 (9th Cir.1992), the Court of Appeals considered a strikingly similar factual setting. The...