No. 97-5110 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 ALEJANDRO CISNEROS-CABRERA, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION SETH WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General SANGITA K. RAO Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217, ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioner's sentence for reentering the United States after deportation, without having obtained the prior consent of the Attorney General to reapply for admission, in violation of 8 U.S.C. 1326, was" correctly enhanced pursuant to 8 U.S.C. 1326(b)(2) and Guidelines 2L1.2 (b) (2) based on petitioner's conviction of an aggravated felony before his deportation, where that prior conviction was vacated by a state court after petitioner's indictment, but before his sentencing, on the Section 1326 violation. (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1997 No. 97-5110 ALEJANDRO CISNEROS-CABRERA, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A3) is reported at 110 F.3d 746. JURISDICTION The judgment of the court of appeals was entered on April 9, 1997. The petition for a writ of certiorari was- filed on July 7, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . STATEMENT Following a conditional guilty plea in the United States District Court for the District of Colorado, petitioner was convicted of reentering the United States, after having been ---------------------------------------- Page Break ---------------------------------------- 2 deported, without having obtained the prior consent of the Attorney General to reapply for admission, in violation of 8 U.S.C. 1326. Petitioner was sentenced to 37 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. Pet. App. A1. 1. a. On September 2, 1993, petitioner, a national of Mexico, was convicted pursuant to a guilty plea in Mesa County, Colorado, of possession of cocaine with intent to sell and distribute it. Presentence Report (PSR) 4-5. On October 31, 1994, the Immigration and Naturalization Service (INS) deported petitioner from the United States. Gov't C.A. Br. 3, b. On June 16, 1995, petitioner was found in the United States, near Grand Junction, Colorado. He was arrested and, on September 20, 1995, indicted in the United States District Court for the District of Colorado, for violation of 8 U.S.C. 1326. Pet. - App. A1; PSR 2. Section 1326(a) of Title 8, United States Code, provides that, subject to Section 1326(b), a previously deported alien who reenters the country without obtaining the prior consent of the Attorney General to reapply for admission shall" be sentenced to a term of imprisonment up to two years or fined under Title 18, or both . Sections 1326(b)(1) and (2) authorize a term of imprisonment up to 10 years in a case where an alien who commits such an offense was convicted of a nonaggravated felony before his deportation, and up to 20 years in a case where an alien who commits such an offense was convicted of an aggravated felony before his deportation. ---------------------------------------- Page Break ---------------------------------------- 3 2. a. Petitioner moved for a pretrial determination of whether, under Section 1326(b)(2) , a prior conviction is a sentence enhancement factor or an element of the offense. Gov't C.A. Br.4- 5. The district court ruled that Section 1326(b)(2) is a penalty provision. Ibid. 1. b. Meanwhile, after his indictment on the federal charge, and while his federal prosecution was pending, petitioner moved in state court to vacate his prior state conviction on the theory that he had been denied the effective assistance of counsel at the time of that conviction in 1993. Pet. App. A1. The State failed to respond to petitioner's motion and the state court granted petitioner's motion to vacate, holding that the State had "confessed" the motion by not responding. Ibid. The state court denied the State's motion for reconsideration. Gov't C.A. Br. 4 c. Based on the state court ruling vacating his conviction, petitioner moved the district court in the instant case to exclude evidence of the vacated prior conviction for purposes of his sentence computation. PSR 2. Petitioner contended that, because ___________________(footnotes) 1 The question whether Section 1326(b)(2) is a penalty enhancement provision or a separate offense is currently pending before this Court in Almendarez-Torres v. United States, No. 96- 6839 (to be argued Oct. 14, 1997). Petitioner did not, however, appeal from the district court's ruling that the prior conviction is a sentencing factor under Section 1326(b). When petitioner entered a guilty plea to the offense, he retained only his right to appeal his sentence. Pet. App. A1. Moreover, petitioner appears to agree with the district court's ruling. See Pet. 3, 6 (citing favorably the lower courts' conclusion that the prior conviction is a sentencing factor, and disagreeing only with its ruling that that conviction could be used at sentencing despite the fact that it was invalidated) . There is therefore no reason for this Court to hold this case pending the outcome of Almendarez-Torres. ---------------------------------------- Page Break ---------------------------------------- 4 his state conviction was now vacated, the court should not rely on it to support a 16-level increase in his offense level under Guideline 2L1.2(b) (2). 2. The court denied the motion. 3. On March 13, 1996, petitioner entered a plea of guilty to the indictment, conditioned on the preservation of his right to appeal the district court's sentencing determination. Pet. App. A1. Before sentencing, petitioner renewed his motion to exclude the prior conviction or, in the alternative, for a downward departure. The district court requested further information about the state conviction and its invalidation to determine whether a downward departure would be warranted. Gov't C.A. Br. 5. The additional information revealed that the principal allegations of prejudice made by petitioner in alleging ineffective assistance of counsel were contradicted by other record material. See PSR 5; Gov't C.A. Br. 5-6. 3. ___________________(footnotes) 2 Sentencing Guidelines 2L1.2(a) establishes a base Offense level of eight for violations of Section 1326, and Guidelines 2L1.2 (b) (2) requires a 16-level enhancement for violators of Section 1326 who had been convicted of an aggravated felony before their deportation. 3 Petitioner had alleged that his counsel was ineffective because he was fatally ill and consuming large quantities of medication, and for that reason had not advised petitioner of the immigration consequences of his guilty plea. PSR 6. Petitioner also had alleged other deficiencies in representation, including that counsel had assured petitioner that he would receive a sentence of probation. Ibid The Presentence Report explains, however, that petitioner had evidenced awareness of the immigration consequences of his plea. He told officials that he was fearful of being deported because of his felony conviction and had stated to other officials that he had not expected probation on his state court case because of the quantity of drugs involved. Moreover, the state plea agreement indicated that no promises had been made to petitioner about punishment because that would be decided by the court. Id. at 7; see also Gov't C.A. Br. at 5-6. ---------------------------------------- Page Break ---------------------------------------- 5 The district court concluded that the vacated conviction could not be used to calculate petitioner's criminal history category because Sentencing Guidelines 4A1.2, Application Note 6, precludes use of sentences resulting from convictions that have been vacated because of errors of law. The court also held, however, that the fact that petitioner had been convicted of an aggravated felony before his deportation required imposition of the 16-level enhancement in the offense level under Guidelines 2L1.2(b)(2). Pet . App. A1; May 3, 1996, tr. 11. Based on petitioner's resultant adjusted offense level of 21 and criminal history category I, the applicable Guidelines range was 37-46 months' imprisonment. May 3, 1996, tr. 11. The court denied petitioner's request for a downward departure, id. at 26, and sentenced petitioner to 37 months' imprisonment. Pet. App. A1. 4. The court of appeals affirmed. Pet. App. A1-A3. It - rejected petitioner's argument that, because his prior conviction is a sentence enhancement factor under Section 1326(b), that conviction had to be valid at the time of sentencing to support an offense level increase under Guidelines 2L1.2(b)(2) . Pet. App. A2. The court agreed with petitioner that section 1326(b) is a sentence enhancement provision, but ruled that, unlike several other sentencing provisions that consider only convictions valid at the time of sentencing, the text of Section 1326(b) and Guidelines 2L1.2(b)(2) clearly state that a conviction supports the sentencing enhancement if it was valid at the time the alien was, deported and reentered the United States in violation of Section ---------------------------------------- Page Break ---------------------------------------- 6 1326. The court noted that the fact that other statutory sentencing provisions specifically exclude reliance on convictions vacated by the time of sentencing, and the fact that other Guidelines provisions cross-reference the application note to Guidelines 4A1.2 which excludes use of such convictions, only serves to bolster its ruling here, because the pertinent statute and Guideline do not contain any such express statement or cross- -reference. Pet. App. A2-A3. ARGUMENT Petitioner contends (Pet. 6-12) that a criminal alien convicted of reentry after deportation, without having obtained prior consent of the Attorney General to reapply for admission, in violation of 8 U.S.C. 1326, cannot be subject to the 16-level increase in offense level under Guidelines 2L1.2(b)(2) for having been convicted, before deportation, of an aggravated felony, if- that prior conviction was vacated by the time of sentencing on the Section 1326 violation. 1. The court of appeals correctly read the text of Section 1326 and Guidelines 2L1.2(b)(2) to permit a defendant's sentence to be enhanced based on his conviction of an aggravated felony before his previous deportation, so long as that conviction was valid at the time the defendant was deported and committed the Section 1326 reentry offense. Section 1326 prohibits previously deported aliens from reentering the United States unless they obtain the express prior consent of the Attorney General to reapply for admission. 8 U.S.C. 1326(a). Under the penalty enhancement ---------------------------------------- Page Break ---------------------------------------- 7 provision of Section 1326(b) (2) , if that alien was convicted of an aggravated felony before his deportation, a term of imprisonment up to 20 years is authorized. Similarly, Guidelines 2L1.2(b)(2) requires a 16-level increase in the base offense level for violators of Section 1326 "[i]f the defendant previously was deported after a conviction for an aggravated felony. " Although, as petitioner notes (Pet. 6-8), other sentencing provisions may prevent enhancement based on convictions that have been vacated, see, e.g., 18 U.S.C. 3559(c)(7) (providing for resentencing under "three strikes" provision where prior conviction used for enhancement is invalidated on certain grounds) , the statute at issue here "specifically provide[s]" the "relevant time frame for determining whether the sentence enhancement should apply." Pet. App. A2. Both Section 1326(b)(2) and Section 2L1.2(b)(2) are triggered by an alien who reenters after deportation following a . conviction for an aggravated felony. The application note to Section 2L1.2 explains that "[d]eported after a conviction, as used in subsections (b) (1)and(b) (2), means that the deportation was subsequent to the conviction. " Guidelines 2L1.2, Application Note 6. "[Petitioner] does not deny he was deported after a conviction for an aggravated felony" and, as the court of appeals correctly concluded, "no more is required." pet. App.A2. The court of appeals correctly rejected petitioner's argument (Pet. 8-11) that sentencing under Guidelines 2L1.2(b)(2) is limited by Application Note 6 to Guidelines 4A1.2, which excludes from criminal history computation any convictions that have been ---------------------------------------- Page Break ---------------------------------------- 8 vacated before sentencing. Some Guidelines do cross-reference Section 4A1.2 and related criminal history Guidelines, thereby imposing similar restrictions on the convictions that can be used to support sentence enhancements under those Guidelines. See, e.g., Guidelines 2K2.1, Application Note 5 (firearms-related offenses) ; Guidelines 4B1.2, Application Note 4 (career offender enhancement) . Section 2L1.2, however, "makes no such cross- reference." Pet. App. A3. Indeed, the application notes to Section 2L1.2 refer to the criminal history Guidelines only to state that Section 2L1.2(b)`s enhanced penalty for a prior felony conviction "applies in addition to any criminal history points added for such conviction." Guidelines 2L1.2, Application Note 5. Accordingly, "rather than incorporating 4A1.2's limitations, 2L1.2 makes clear the two enhancement provisions are distinct. " Pet. App. A3. 4. 2. Petitioner advances no claim that the courts of appeals are in conflict on this issue, and acknowledges (Pet. 11) that the ___________________(footnotes) 4 As petitioner explains (Pet. 9-l0), other courts of appeals have looked to Guidelines 4A1.2 as one factor when resolving other open questions in the application of Guidelines S 2L1.2, see, e.g., United States v. Cuevas, 75 F.3d 778, 782 (1st Cir. 1996) (interpreting meaning of "conviction") ; United States V. Quinonez-Terrazas, 86 F.3d 382, 383 (5th Cir. 1996) (determining whether upper end of an indeterminate sentence should be basis for deciding the length of "term of imprisonment imposed"); United States v. Cordova-Beraud, 90 F.3d 215, 218-220 (7th Cir. 1996) (same); United States v. Ortiz-Gutierrez, 36 F.3d 80, 82 (9th Cir. 1994) (determining whether three-year sentence for robbery and two- year sentence for use of a gun imposed for same offense meets the minimum five-year prison term requirement in definition of "aggravated felony") . But here, "[g]iven the clarity of 8 U.S.C. 1326(b)(2) and U.S.S.G. 2L1.2 (b) (2)," Pet. App. A3, the plain language of the text controls. ---------------------------------------- Page Break ---------------------------------------- 9 issue presented by this case appears to be one of first impression in the courts of appeals. Although United States v. Smith, 36 F.3d 128 (1st Cir.), cert. denied, 513 U.S. 1008 (1994), involved a defendant" in circumstances similar to petitioner one who was sentenced under Section 1326(b)(2) at a time when his prior aggravated felony conviction had been vacated by a state court that opinion rejected the argument that the indictment should have been dismissed because proof of a prior aggravated felony conviction is an element of an offense under Section 1326(b)(2) (see 36 F.3d at 132), and did not address any separate challenge to the validity of relying on that conviction as a sentencing enhancement See note 1, supra. It is clear, however, that the district court in Smith refused to disregard the vacated state aggravated felony conviction at sentencing, although it did use its discretion to grant a downward departure so that the sentence the defendant received did not reflect an enhancement for the state conviction. 36 F.3d at 132. The First Circuit noted that "the district court prudently sentenced [defendant] as if his aggravated felony did not exist, by implementing a downward departure that, according to the court, in effect strips out the conviction that has been vacated." Ibid The decision of the court of appeals in this case does not conflict with that view of the First Circuit that, in the proper Section 1326(b)(2) case, it may be appropriate to depart downwards where the defendant's prior felony conviction has been vacated. Whether a downward departure is warranted, however, is a case-specific ---------------------------------------- Page Break ---------------------------------------- 10 inquiry. In this case, after a careful examination of the circumstances surrounding the initial conviction and its subsequent vacation, the district court determined that a downward departure was not warranted. Its exercise of discretion in not granting a downward departure merits no further reviews ___________________(footnotes) 5 Petitioner errs in suggesting (Pet. 12) that the issue in this case involves a "question left open" in Custis v. United States, 511 U.S. 485 (1994). In Custis, the Court determined that a defendant in a federal sentencing proceeding may not collaterally attack the validity of prior state convictions that are used to enhance his sentence under 18 U.S.C. 924(e), which deals with armed career criminals, so long as he was accorded the right to appointed counsel by the State. Id. at 490. The Court went on to state that if, after sentencing, a defendant successfully attacks his state convictions, "he may then apply for reopening of any federal sentence enhanced by the state sentences." Id. at 497. Petitioner argues that "[w]hat impact a successful attack on prior convictions then has on the federal sentence should be decided by this Court." Pet. 12. The statute at issue in Custis, however, specifically provides that vacated convictions may not be used for sentencing `enhancement under Section 924(e). Custis, 511 U.S. at 491; see 18 U.S.C. 921(a) (20). Section 1326, on the other hand, has no such provision; accordingly, by its plain terms, the success of an attack on a prior conviction is not relevant. ---------------------------------------- Page Break ---------------------------------------- CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. OCTOBER 1997 SETH WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General SANGITA K. RAO Attorney