U.S. Court of Appeals, Third Circuit
filed: May 31, 1995.
UNITED STATES OF AMERICA, APPELLEE
ANDRE BENSON EVERSLEY, APPELLANT
On Appeal From the District Court of the Virgin Islands (St. Croix). (D.C. Crim. No. 94-cr-00016).
Before: Becker, Nygaard, and Roth, Circuit Judges.
Opinion OF THE COURT
BECKER, Circuit Judge.
The defendant, Andre Benson Eversley, a citizen of Guyana, having been deported from the United States following the commission of an aggravated felony, was again found in the United States and was indicted in the District Court of the Virgin Islands on charges of illegally entering the country. Pursuant to a plea bargain, Eversley was permitted to plead guilty to a violation of 8 U.S.C.A. § 1326(b)(1) (1993) for entering the country illegally following the commission of a non -aggravated felony.*fn1 The court imposed a sentence of fifty months imprisonment. On appeal, Eversley challenges the propriety of this sentence to the extent that the district court used sentencing guideline § 2L1.2(b)(2), which pertains to defendants with a prior conviction of an aggravated felony and makes that status a specific offense characteristic carrying a sixteen level increase on the base offense level, as opposed to sentencing guideline § 2L1.2(b)(1), which pertains to defendants with a prior conviction of a non -aggravated felony and provides for only a four level increase.*fn2 Because we conclude that the district court's use of guideline § 2L1.2(b)(2) was proper, we will affirm.*fn3
The defendant, a resident alien, was arrested and convicted during 1988 in Brooklyn, New York for the sale of crack cocaine, an aggravated felony, and was subsequently deported as a controlled substance trafficker in January 1989. In April 1994, he was found within the United States, on the island of St. John, by a United States Immigration Inspector.
Following indictment and plea, the district court sentenced Eversley for a violation of § 1326(b)(1). In so doing, the court applied, pursuant to guideline § 2L1.2(b)(2), a sixteen level enhancement to Eversley's base offense level of eight, which resulted (following the grant of a three level downward adjustment for Eversley's acceptance of responsibility) in a total offense level of 21. Given Eversley's criminal history category of III, the applicable guideline range was forty-six to fifty-seven months. As we have stated, the court imposed a sentence of fifty months.
At his sentencing hearing Eversley contended that, given his plea bargain agreement, the district court was required to use the four level sentence enhancement of sentencing guideline § 2L1.2(b)(1) (for defendants with a prior conviction of a non -aggravated felony), and a corresponding applicable guideline range of ten to sixteen months, instead of the sixteen level enhancement of § 2L1.2(b)(2) (for defendants with a prior conviction of an aggravated felony), which, as noted, resulted in a much higher range. The district court disagreed, but offered him an opportunity to withdraw his plea if he felt that it did not accord with his original understanding of the plea arrangement. App. at 49 & 51. Eversley declined this offer and argues on appeal that the district court erred, as a matter of law, in applying guideline § 2L1.2(b)(2) to his conviction. Our review is plenary. United States v. Collado, 975 F.2d 985, 989 (3d Cir. 1992).
Eversley concedes that he was in fact deported for the commission of an aggravated felony. He nonetheless repeats on appeal his contention that, since his indictment was treated as a violation of § 1326(b)(1) (re-entry after deportation following commission of a felony "other than an aggravated felony") rather than of § 1326(b)(2) (re-entry after deportation following commission of an "aggravated felony"), the district court should have applied the four level enhancement of sentencing guideline § 2L1.2(b)(1) (for the prior commission of a non-aggravating felony) as opposed to the sixteen level enhancement of guideline § 2L1.2(b)(2) (for the prior commission of an aggravated felony). Notwithstanding the parallel structure of the guideline and statute, we disagree. The fact that Eversley pled guilty to a violation of § 1326(b)(1) did not eliminate, as we demonstrate, the requirement that the sentencing court apply guideline § 2L1.2(b)(2) to his conviction.
Section 2L1.2(b) provides for an offense level enhancement for violations of § 1326, depending upon the presence of specific offense characteristics, and states: "if more than one applies, use the greater." U.S.S.G. § 2L1.2(b); see id. Application Note 5 ("An adjustment under subsection (b)(1) or (b)(2) for a prior felony conviction applies in addition to any criminal history points added for such conviction in Chapter Four, Part A (Criminal History)."). The sixteen point enhancement of subsection (b)(2) was added by the sentencing commission to strengthen the penalties for violations of § 1326 by eliminating the government's need to request a discretionary upward departure in cases where the defendant had been convicted of a previous aggravated felony. Commentary to Amend. 375.
The structure and language of the guidelines make clear that subsection (b)(2) of § 2L1.2 applies to all violations of § 1326. Section 1B1.2(a) of the guidelines requires a sentencing court, in selecting a guideline, to determine the particular guidelines "most applicable to the offense of conviction." Eversley was indicted for a violation of § 1326(b)(1), and guideline 2L1.2 applies by its terms to all violations of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2 (commentary -- statutory provisions). Similarly, the statutory appendix to the guidelines*fn4 refers to § 2L1.2, in its entirety, for all violations of § 1326. Eversley fails to point to anything in the language or structure of the guidelines or the history surrounding the adoption of § 2L1.2(b)(2) to suggest that the sentencing commission intended it to apply only to violations of § 1326(b)(2). Accordingly, we conclude that the district court was required to apply the sixteen level enhancement of guideline § 2L1.2(b)(2) in this case, even though Eversley pled guilty to a violation of § 1326(b)(1).
Approaching the argument from a slightly different angle, Eversley argues that the nature of the § 1326 violation controls the court's factual determination of the defendant's status as a felon or aggravated felon for purposes of applying the specific offense characteristics of § 2L1.2(b). In particular, he contends that since he only pled guilty to having entered the country illegally following the commission of a non-aggravated felony, the court could not consider in sentencing him the fact that he had actually been deported following the commission of an aggravated felony.
We reject this argument since the district court was required in sentencing the defendant to consider all available information in determining whether it was necessary to apply the sixteen level enhancement of § 2L1.2(b)(2). Guideline § 1B1.3(a)(4) clearly requires the sentencing court to determine the sentence "on the basis of any other information specified in the applicable guideline." The fact that Eversley pled guilty to subsection (b)(1) of § 1326, as opposed to (b)(2), did not obviate the need of the sentencing court to abide by the dictates of guideline § 1B1.3(a)(4) by assessing the particular character of Eversley's prior convictions and adjusting his sentence for his prior commission of an aggravated felony as specified by § 2L1.2(b)(2).
The two other courts of appeals to have addressed this issue have also reached this Conclusion. In United States v. Frias-Trujillo, 9 F.3d 875 (10th Cir. 1993), the court declared, in upholding the application of the sixteen level enhancement of § 2L1.2(b)(2) to a defendant who pled guilty to a violation of § 1326(b)(1), that the structure of the guidelines "clearly indicates that the sentencing court's consideration is not limited by the particular subsection of 1326 at issue." Id. at 877. Moreover, the Ninth Circuit, which is the only circuit to have treated § 1326(b) as a separate criminal offense, see infra note 5, agrees with this analysis; it has concluded that, notwithstanding a defendant's plea to a violation of § 1326(b)(1), "the clear language of the Sentencing Guidelines requires the sentencing court to increase the base offense by sixteen levels, if defendant was deported after conviction for an aggravated felony." United States v. Pena-Carrillo, 46 F.3d 879, 883-85 (9th Cir. 1995) (relying on United States v. Arias-Granados, 941 F.2d 996 (9th Cir. 1991)). Eversley simply offers no argument to suggest these cases were incorrectly decided.*fn5
In sum, Eversley pled guilty and was sentenced under the guidelines to a violation of § 1326(b)(1). He was fully apprised that under his plea arrangement the court would calculate his sentence pursuant to the sixteen level enhancement of § 2L1.2(b)(2). In applying this section to his violation, the district court correctly interpreted the dictates of the guidelines. Accordingly, the judgment of the district court will be affirmed.