United States v. Vidal-Mejia, 37 F.3d 1484, 1st Cir. (1994)
United States v. Vidal-Mejia, 37 F.3d 1484, 1st Cir. (1994)
3d 1484
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be
cited only in related cases.
Background
Vidal-Mejia initially pleaded not guilty but changed his plea to guilty at a
hearing before the district court on July 6, 1993. Although there was no written
plea agreement, the government informed the court that it had agreed to
recommend a three-level reduction in the offense level for acceptance of
responsibility. A presentence report ("PSR") was prepared, computing a total
offense level of 21 and a criminal history category of III. The base offense level
of 8 was increased by 16 levels because Vidal-Mejia had been deported
follwing conviction of an aggravated felony. There was a three-level reduction
for acceptance of responsibility. The resulting guideline imprisonment range
was 46 to 57 months.
Vidal-Mejia moved for a downward departure from the guidelines, arguing that
his sentence should not exceed two years. One of the grounds for his motion
was that the government was estopped from imposing a sentence in excess of
two years because an INS notice given to him at the time of his deportation
stated that illegal reentry was penalized by a maximum of two years'
imprisonment. In fact, at the time of appellant's deportation, 8 U.S.C. Sec.
1326(b)(2) provided for a maximum sentence of fifteen years for illegal reentry
by an alien deported following conviction of an aggravated felony. The district
court denied the motion and sentenced Vidal-Mejia at the low end of the
guideline range, to 46 months' imprisonment. Vidal-Mejia appeals from that
sentence and his conviction.
Discussion
5
Counsel for appellant identifies the following issues that might arguably
support an appeal: 1) the district court mistakenly believed that it lacked the
authority to depart from the guidelines on the ground of the erroneous INS
notice; 2) the government is estopped from imposing a sentence in excess of
two years; 3) a sentence in excess of two years violates the Due Process Clause
of the Fifth Amendment to the Constitution; and 4) the district court failed to
comply with Fed. R. Crim. P. 11 in accepting appellant's guilty plea. We agree
with the government that none of these arguments has merit.
In United States v. Perez-Torres, 15 F.3d 403 (5th Cir. 1994), the Fifth Circuit
refused to apply the doctrine of equitable estoppel under identical
circumstances. Noting that " 'he who comes into equity must come with clean
hands,' " id. at 407 (quoting Precision Instrument Mfg. Co. v. Automotive
M.M. Co., 324 U.S. 806 (1945)), the Fifth Circuit concluded that the willful
and knowing commission of a felony (illegal reentry) cannot constitute the
3) Due Process. This court has not previously addressed the argument that the
imposition of a penalty in excess of the two year maximum contained in the
INS notice violates due process. In rejecting this argument, however, we follow
the approach of all the circuits that have addressed it. See United States v.
Samaniego-Rodriguez, Nos. 93-3015 and 93-4035, 1994 U.S. App. Lexis
20311 at * 5 (7th Cir. Aug. 4, 1994); United States v. Meraz-Valeta, 26 F.3d
992, 996 (10th Cir. 1994); United States v. Ullyses-Salazar, 28 F.3d 932, 936
(9th Cir. 1994); Perez-Torres, 15 F.3d at 406. We agree with the following
reasoning of the Fifth Circuit:
13
4) Rule ll. Appellant's final argument is that his guilty plea should be vacated
because the district court failed to comply with the mandates of Fed. R. Crim.
P. 11. Specifically, he argues that the district court violated Rule 11 by failing
adequately to explain and ensure that he understood that the maximum sentence
he could receive was fifteen years and that he was pleading guilty to two
separate charges contained in one indictment.
14
At the change of plea hearing, appellant was represented by counsel and aided
by an interpreter. At the district court's request, the government explained that
the maximum term of imprisonment that appellant could receive was fifteen
years. (The government also recited the maximum fine, supervised release and
special assessment that could be imposed.) The court then asked appellant
whether he understood that "that's the maximum penalty that can be imposed in
this case?" The appellant answered "yes."
15
Appellant's contention that the district court did not fulfill its obligation under
Rule 11(c) to ensure that he understood the charges against him is belied by the
record. Rule 11 "requires the court both to inform the defendant of the nature of
the charge and make a determination that he understands it." United States v.
Allard, 926 F.2d 1237, 1244 (1st Cir. 1991). The district judge summarized the
charge as follows:
16 before I can find you guilty of the offense, even on your plea, I have to be
Now,
satisfied beyond a reasonable doubt that there is sufficient evidence from which the
Government could prove you guilty of the offense of being an illegal alien illegally
reentering the United States after having been deported. The Government has to
prove that you knowingly and willfully reentered the United States without having
received the express consent of the Attorney General, that it didn't happen by
inadvertence or mistake, but that you really meant to be here knowing that you were
a deported alien.
17
At the court's request, the government then stated what its evidence would be if
the case were to proceed to trial.
18
The district court's description of the charge did not specify that Sec. 1326(b)
enhances the penalty for deportation following conviction of an aggravated
felony. The government, however, specifically outlined the previous
convictions as part of the recitation of its proof at the hearing. This cured the
omission. See Allard, 926 F.2d at 1246 (explanation of charge may come from
the prosecutor in the court's presence). Moreover, in United States v. Forbes, 16
F.3d 1294, we held that Sec. 1326(a) and Sec. 1326(b) do not describe separate
criminal offenses with different elements and maximum penalties. Instead, we
concluded that Sec. 1326(b) should be construed as a sentence enhancement
provision. Id. at 1297-1300. Therefore, the alleged failure specifically to inform
appellant of the prior aggravated felony aspect of Sec. 1326(b) did not violate
Rule 11 where the court ensured that appellant understood that the maximum
penalty was fifteen years.
19
Appellant's brief indicates that counsel conducted the requisite review and
analysis of the case. See Anders, 386 U.S. at 744. Having carefully reviewed
the record in accordance with our obligation under Anders, we agree that the
appeal is indeed without merit. The conviction and sentence are summarily
affirmed pursuant to Loc. R. 27.1.