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U.S. v. DeLeon-Rodriguez


November 30, 1995




On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 94-cr-00447)

Before: SCIRICA, COWEN and ROTH, Circuit Judges

SCIRICA, Circuit Judge.

Argued October 19, 1995

Filed November 30, 1995)


The central issue in this criminal appeal is whether 8 U.S.C. Section(s) 1326(b)(2) makes a prior conviction for an aggravated felony an element of the offense, requiring proof for conviction, or whether it is a penalty enhancement provision under 8 U.S.C. Section(s) 1326(a), which sets forth the elements of the offense.


On May 14, 1990, Jesus Rhadames DeLeon-Rodriguez, a citizen of the Dominican Republic, was convicted of delivery of cocaine in the Court of Common Pleas of Berks County, Pennsylvania and sentenced to eighteen to sixty months imprisonment. As a result of his conviction he was deported to the Dominican Republic on May 17, 1991.

On July 28, 1994 Rodriguez was again arrested in Berks County on drug related charges. After notification by the local police, the Immigration and Naturalization Service interviewed Rodriguez about his immigration status. During the interview Rodriguez admitted he had been deported in 1991 and that he had illegally reentered the United States in 1993 by boat at San Juan, Puerto Rico. After receiving Miranda warnings, Rodriguez invoked his right to counsel and no further questions were asked.

Rodriguez was charged by the government with illegal reentry after deportation in violation of 8 U.S.C. Section(s) 1326(b)(2) (1994), which provides:

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

(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 20 years, or both. *fn1

Rodriguez was convicted at a bench trial and sentenced to seventy-two months imprisonment. *fn2 This appeal followed. We have jurisdiction under 28 U.S.C. Section(s) 1291, as well as 18 U.S.C. 3742(a). United States v. Shoupe, 988 F.2d 440 (3d Cir. 1993).


The principal question raised in this appeal is whether a prior conviction for an aggravated felony is an element of 8 U.S.C. Section(s) 1326(b)(2) or simply a condition triggering an enhanced penalty. At trial, Rodriguez sought dismissal of his indictment for failure to state an offense, because it omitted what he claims is an essential element of the offense --deportation subsequent to a conviction for an aggravated felony. The district court held this was not an element of the offense and denied the motion. *fn3 We exercise plenary review.

Several other circuits have already addressed this issue. *fn4 Of those, all but one has held that Section(s) 1326(b)(2) is a sentencing enhancement provision. See United States v. Palacios-Casquete, 55 F.3d 557, 559 (11th Cir. 1995), petition for cert. filed (Sept. 5, 1995) (No. 95-5849); United States v. Munoz-Cerna, 47 F.3d 207, 210 n.6 (7th Cir. 1995) ("the better view is that the subsections [of Section(s) 1326] are sentence enhancements); United States v. Cole, 32 F.3d 16, 18 (2d Cir.), cert. denied, 115 S. Ct. 497 (1994); United States v. Crawford, 18 F.3d 1173, 1177 (4th Cir.), cert. denied, 115 S. Ct. 171 (1994); United States v. Forbes, 16 F.3d 1294, 1297-30 (1st Cir. 1994); United States v. Vasquez-Olvera, 999 F.2d 943, 945 (5th Cir. 1993), cert. denied, 114 S. Ct. 889 (1994); but see United States v. Campos-Martinez, 976 F.2d 589 (9th Cir. 1992). Upon examining the language and structure of Section(s) 1326(b), we too are convinced it is a sentencing enhancement provision rather than an offense distinct from Section(s) 1326(a).

Section 1326(a) sets out the elements of the offense (arrest, deportation, and re-entry) and certain penalties (fine and two-year maximum imprisonment), while subsection (b)(2) sets forth no elements but only provides for stiffer penalties based on criminal history (after conviction of an aggravated felony). Section 1326(b) itself sets forth no elements of an offense. *fn5 The language and structure make clear that Section(s) 1326 is a sentencing enhancement provision only.

The Court of Appeals for the Second Circuit shares our view that the structure of Section(s) 1326 as a whole demonstrates that Section(s) 1326(b) is an enhancement provision. United States v. Cole, 32 F.3d at 18. The Courts of Appeals for the Fourth and Fifth Circuits reached the same conclusion under a "plain language" analysis of Section(s) 1326. Crawford, 18 F.3d at 1177; Vasquez-Olvera, 999 F.2d at 945.

In addition, the title assigned to Section(s) 1326 supports the view that it outlines a single offense with varying penalties. Before the 1988 amendments, the section was entitled "Reentry of deported alien;" after the amendments, it reads ""Reentry of deported alien; criminal penalties for re-entry of certain deported aliens." 8 U.S.C. Section(s) 1326. As the Fourth Circuit explained, "[t]his change in title indicates that, by amending Section(s) 1326, Congress intended to create enhanced penalties for 'certain' aliens who commit the underlying offense of unlawfully reentering the United States after having been previously deported, not to create a separate substantive offense." Crawford, 18 F.3d at 1177; see also Vasquez-Olvera, 999 F.2d at 945; Palacios-Casquete, 55 F.3d at 560 (looking to "evolution of Section(s) 1326 through its various amendments" to conclude it defines one substantive crime).

The Court of Appeals for the First Circuit also construes 1326(b) as an enhancement provision, but relies principally on a public policy argument. Referring to evidentiary rules and decisional law, the court found strong policy reasons to exclude or limit information about prior convictions at trial, citing the possibility of undue prejudice. Interpreting Section(s) 1326(b) to require proof at trial of conviction of a prior offense would contravene this principle. In the absence of explicit congressional direction, the court explained it was "reluctant to impose that burden on defendants." Forbes, 16 F.3d at 1300.

Only the Court of Appeals for the Ninth Circuit has reached the conclusion that Section(s) 1326(b)(2) is not an enhancement provision. The first appellate court to consider the question, it found the different subsections of 8 U.S.C. Section(s) 1326 delineate separate offenses, the elements of which must be proven at trial, not just at sentencing. See, e.g., United States v. Arias-Granados, 941 F.2d 996 (9th Cir. 1991); United States v. Gonzales-Medina, 976 F.2d 570 (9th Cir. 1992); United States v. Campos-Martinez, 976 F.2d 589 (9th Cir. 1992). While two earlier Ninth Circuit panels reached this conclusion without explanation, in United States v. Campos-Martinez, the Ninth Circuit set forth the reasons for its holding. Although citing the precedent of Arias-Granados, the court relied on its interpretation of 8 U.S.C. Section(s) 1325 as a guide in interpreting Section(s) 1326. *fn6 Section 1325(a) makes illegal entry a crime with a maximum sentence of six months imprisonment. The same section provides that illegal entry after a previous conviction for illegal entry is a separate crime with a maximum two year sentence. Campos-Martinez, 976 F.2d at 591. The court found that because "[s]ections 1325 and 1326 are similar in structure, operation, purpose, and subject matter . . . section 1325 provides the best analogy" available in interpreting Section(s) 1326, and therefore Section(s) 1326 ought to be understood as delineating distinct offenses. Id. at 592.

We are not convinced. Instead, like the Second, Fourth and Fifth Circuits, we believe the language and structure of Section(s) 1326 establish that Section(s) 1326(b)(2) is a sentencing enhancement provision rather than an offense distinct from Section(s) 1326(a). We will affirm the district court's denial of Rodriguez's motion to dismiss the indictment on the grounds it failed to state an offense.


Rodriguez contends the district court should have granted him a reduction in his offense level for having "accepted responsibility," under U.S.S.G. Section(s) 3E1.1.(a)(1994), which permits a reduction "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense." Whether a defendant has "accepted responsibility" is a factual matter and is reviewed under a "clearly erroneous" standard. See United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir. 1992). "The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review." Application Note 5 to U.S.S.G. Section(s) 3E1.1.

A defendant bears the burden of establishing by a preponderance of the evidence that a reduction under this provision is warranted. Rodriguez, 975 F.2d at 1008. Rodriguez advanced several factors to support his request for an offense level reduction. Looking to his pretrial conduct, Rodriguez characterizes his interview with the INS agent as a "confession." Brief for Appellant at 4. As for his subsequent conduct, he contends that at trial he "did not contest any of the factual allegations of the government . . . did not deny or even move to suppress [his] confession, and . . . did not present any evidence." Brief for Appellant at 5. Moreover, Rodriguez characterizes his objections during trial as "purely legal ones," and points to his limited cross-examination of the government's witnesses. Also, near the end of the trial, Rodriguez sought to enter a Zudick guilty plea, conditioned on a determination of a preserved appellate issue. United States v. Zudick, 523 F.2d 848, 851 (3d Cir. 1975). Overall, Rodriguez contends he effectively left unchallenged the government's case against him and contested only selected legal issues but not the central fact of the case -- that he had illegally reentered the United States after deportation.

The district court disagreed. It found that Rodriguez's brief initial statements during the interview with the INS agent did not manifest an acceptance of responsibility. Furthermore, the court found the government was "put to the test in its offering of evidence." Among other challenges, Rodriguez contested the testimony of the police officer who found him in the United States subsequent to deportation; questioned the relevance of the government's evidence on INS deportation procedures and the credibility of evidence in the INS file; cross-examined the government's witness about his personal knowledge of Rodriguez's deportation; attacked the quality and accuracy of the government's fingerprint evidence; and sought to exclude INS exhibits and documentary evidence which went to an essential element of the offense and to the heart of the prosecution's case.

After examining the record we find no error. Application Note 2 to Section(s) 3E1.1 explains that a reduction is generally not meant to apply to a defendant who puts the government to its burden of proof at trial. While the Application Note adds that "[c]onviction by trial . . . does not automatically preclude a defendant from consideration for such a reduction," it suggests that a reduction should be granted only in "rare situations," such as when a "defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct)." The district court found that Rodriguez "contested his factual guilt . . . beyond a mere legal challenge." Appendix at 136a. We agree.


We will affirm the judgment of conviction and sentence.

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