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
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). ...