U.S. v. Rojas-Luna (5th Cir. 3/26/08)

PRADO King Stewart

The 5th Cir found, in the context of an illegal reentry prosecution, that the fact that someone was deported after committing an aggravated felony was a fact that needed to be proven to the jury.  Almendarez-Torres v. United States, 523 U.S. 224 (1998), distinguished.

Read decision here:

Facts: deported in 88, 06 - AggFel conviction in 2003.  The question was whether the Govt could use the 06 conviction to raise the maximum from 2 yrs to 20. 

   [T]he statute under which Rojas-Luna was convicted, 8 U.S.C. § 1326(a), provides for a maximum penalty of two years’ imprisonment for illegal reentry. However, pursuant to § 1326(b)(2), the maximum penalty is increased to twenty years in prison for an alien whose prior removal “was subsequent to a conviction for commission of an aggravated felony . . . .” Id. (emphasis added). At his rearraignment, Rojas-Luna pleaded guilty to reentering the country after having been removed in 1988. Because he was not convicted of aggravated assault until 2003, his 1988 removal, although sufficient to convict him of violating § 1326(a), could not form the basis of the enhancement in § 1326(b)(2), because it was not “subsequent to” his conviction. See United States v. Sanchez-Mota, 319 F.3d 1, 3-4 (1st Cir. 2002) (per curiam) (holding that § 1326(b)(2) did not apply to an alien who was not removed subsequent to his conviction). Consequently, under the plain terms of the statute, the Government must rely on Rojas-Luna’s 2006 removal in order to increase the maximum penalty range to twenty years. The question remains, then, whether the 2006 removal is a fact that must be proven beyond a reasonable doubt to a jury or if it may be found by the district judge at sentencing.

1.  Rejected Govt's attempt to expand Almendarez-Torres (prior conviction need not be proven before jury) to include fact of prior removal.

   The Government urges us to adopt the reasoning of Almendarez-Torres here and hold that a prior removal under § 1326(b)(2) is likewise only a sentencing factor and thus does not need to be proven to a jury. Rojas-Luna contends that this court must limit the holding of Almendarez-Torres to prior convictions alone.

   Our review of Supreme Court precedent following Almendarez-Torres demonstrates that, although Almendarez-Torres remains good law, the Supreme Court has shown a reluctance to expand Almendarez-Torres’s holding to any fact other than a prior conviction. For example, in Jones v. United States, the Court held that provisions in a carjacking statute that provided for higher penalties in cases involving serious bodily injury or death were elements of the offense itself, not sentencing factors. 526 U.S. 227, 229 (1999). Similarly, in Apprendi, the Court determined that a law providing for higher penalties if a crime was racially motivated required a jury to find racial motivation beyond a reasonable doubt. 530 U.S. at 468-69, 497.

* * *

   The Government’s argument that we treat a prior removal as addressing the same recidivism concerns as a prior conviction is also unavailing. As noted above, one of the reasons the Supreme Court has countenanced the use of a prior conviction to enhance a sentence is that a prior conviction is the product of procedures that encompass the constitutional guarantees of fair notice, reasonable doubt, and a jury. Jones, 526 U.S. at 249. Removals, on the other hand, are not subject to the same constitutional requirements. See Carlson v. Landon, 342 U.S. 524, 537 (1952) (“Deportation is not a criminal proceeding . . . No jury sits. No judicial review is guaranteed by the Constitution.”); United States v. Benitez-Villafuerte, 186 F.3d 651, 657 (5th Cir. 1999) (“A deportation hearing is a civil, not a criminal, action . . . As such, the full range of constitutional protections available to a defendant in a criminal case are not afforded an alien in a deportation proceeding.”). Consequently, while a court may use a prior conviction with the knowledge that the defendant was given multiple constitutional protections, the same cannot be said for prior removals.

   In sum, the Supreme Court has clearly indicated that Almendarez-Torres is limited to prior convictions and that any other fact used to increase a sentence beyond a statutory maximum must be proven to a jury. Therefore, the district court in this case erred in finding the fact of Rojas-Luna’s 2006 conviction for purposes of increasing his sentence under § 1326(b)(2) beyond the statutory maximum.2 Further, in light of the above precedent, this error was clear and obvious, satisfying the first two elements of the plain error standard. We are not alone in this holding, as the Ninth Circuit has recently considered this issue and reached the same conclusion on materially indistinguishable facts. United States v. Covian-Sandoval, 462 F.3d 1090, 1096-99 (9th Cir. 2006), cert. denied, 127 S. Ct. 1866 (2007) (holding that it was plainly erroneous for the district court to find the fact of a subsequent removal for purposes of the § 1326(b)(2) enhancement when the defendant did not admit to the subsequent removal at the plea colloquy).

2.  Note - this only applies where indictment charges different deportation than the one it wants to use to increase the sentence

   FN2 To be clear, this ruling only applies when the Government seeks to use a removal under § 1326(b)(2) that is different than the removal used to obtain the conviction under § 1326(a). Had Rojas-Luna admitted to his 2006 removal or had it been proven to a jury beyond a reasonable doubt, the district court would have been justified in relying on the 2006 removal to enhance Rojas-Luna’s sentence.

Comments

Add New Search

Write comment
Name:
Email:	do not notifynotify
Website:
Title:
UBBCode:	-color-aquablackbluefuchsiagraygreenlimemaroonnavyolivepurpleredsilvertealwhiteyellow -size-tinysmallmediumlargehuge
	Please input the anti-spam code that you can read in the image.

Powered by !JoomlaComment 3.12

Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.