United States v. Smith

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 93-1722

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    TYRONE SMITH,
                                   a/k/a PAUL GLEN,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                             Torruella, Selya and Stahl,

                                   Circuit Judges.
                                   ______________

                                _____________________

               Annemarie Hassett, Federal Defender Office, for appellant.
               _________________
               Robert E. Richardson, Assistant United States Attorney, with
               ____________________
          whom A. John Pappalardo, United States Attorney, was on brief for
               __________________
          appellee.

____________________

                                   January 28, 1994
                                 ____________________

TORRUELLA, Circuit  Judge.   Defendant-appellant Tyrone
                               ______________

          Smith was  indicted in the  United States District Court  for the

          District  of Massachusetts for  unlawful reentry into  the United

          States  following deportation, in  violation of 8  U.S.C.   1326.

          Smith moved to dismiss the indictment, collaterally attacking the

          deportation  order  upon which  the  indictment was  based.   The

          district court denied the motion.  Smith then entered into a plea

          agreement  in  which he  pleaded  guilty  to the  indictment  but

          reserved the  right to appeal  from the denial  of the motion  to

          dismiss the indictment.   Smith now appeals this  denial, as well

          as  the district  court's denial  of  his motion  for a  downward

          departure from  the applicable  sentencing guideline  range.   We

          affirm.

                                      I.  FACTS
                                      I.  FACTS

                    A.  The Underlying Deportation

                    Smith, a citizen of Jamaica, lived in the United States

          as a  lawful permanent  resident.  In  March of  1989, Smith  was

          convicted for unlawful possession of a firearm and trafficking in

          cocaine.   The  Immigration and  Naturalization  Service  ("INS")

          subsequently commenced  deportation proceedings against  Smith by

          issuing an order to show cause.  On September 11, 1991, Smith was

          arrested and served with the order to show cause.

                    On  September  20,  1991,  Smith  appeared  before  the

          immigration court and informed the immigration  judge that he was

          represented by Paul Carrigan, a Boston attorney.  The immigration

          judge informed Smith that he  should appear with his attorney for

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a deportation hearing on September 27, 1991.  The judge also told

          Smith  that there would be a bond hearing on the same day.  Smith

          contends that he did not  know that the deportation hearing would

          take place on September 27,  1991; rather, he thought there would

          only be a bond hearing on that date.

                    Smith  appeared  at  the  September  27,  1991 hearing.

          Attorney  Carrigan did  not  appear.    Another  attorney,  Manny

          Daskal, however,  did appear  on behalf of  Smith, but  only with

          respect to  the bond aspects  of the hearing.   At this  hearing,

          when  the immigration  judge asked  Smith  if he  had counsel  to

          represent him for the deportation hearing, Smith replied  that he

          did not.  The immigration judge then  told Smith that he had been

          given ample time to obtain counsel,  and that the judge was going

          forward  with  the deportation  hearing  with Smith  representing

          himself.

                    The  deportation   hearing  then  commenced,   and  the

          immigration judge explained the procedure that would be followed.

          After the  evidence had  been introduced,  the immigration  judge

          told Smith that  based on the types  of offenses of which  he had

          been  convicted,  a waiver  was  not  available  to Smith.    The

          immigration judge then issued an oral order of deportation.

                    The immigration  judge then  announced that notices  of

          appeal had  to be  filed by  October 7, 1991,  and explained  the

          appeal process  to Smith.   On  October 9,  1991, Smith  filed an

          appeal with  the  Board of  Immigration  Appeals in  which  Smith

          claimed that the  immigration judge erred by  failing to consider

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the fact that he had five children living in Boston, and that his

          wife  was mentally  ill.  Smith  did not  claim that he  had been

          denied  his right  to counsel  at  the deportation  hearing.   On

          November 14,  1991, before any  action was taken with  respect to

          Smith's  appeal,  Attorney  Carrigan sent  a  letter  to  the INS

          stating, in pertinent part:  "I am an attorney for Tyrone  Smith.

          I hereby withdraw  any pending appeals he may  have regarding the

          above  referenced   deportation  matter."    Smith  himself  also

          submitted a handwritten statement withdrawing his appeal.

                    B.  The Deportation

                    Smith was  deported on November  20, 1991.  As  part of

          the deportation process, the INS gave Smith a notice, INS FORM I-

          294, which  stated that in the event that  he wished to return to

          the  United States,  he had  to obtain  permission and  that "any

          deported  person who within five years returns without permission

          is  guilty of  a felony.    If convicted  he may  be  punished by

          imprisonment of not more than two years and/or a fine of not more

          than  $1000.00."    Smith signed  the  notice,  acknowledging his

          receipt of  the  document.   INS Form  I-294 only  set forth  the

          penalties generally applicable to a violation of 8 U.S.C.   1326,

          but  did not  state the  more  severe penalties  that applied  to

          aliens, who,  like  Smith, had  been convicted  of an  aggravated

          felony.  In  fact, the penalty Smith would face if he returned to

          the United States without  permission was imprisonment for  up to

          fifteen years.

                    C.  The Subsequent Criminal Prosecution

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Despite the  deportation order,  Smith returned to  the

          United States, and was subsequently apprehended.  On November 12,

          1992, the grand  jury returned a single count indictment charging

          Smith  with  illegally  returning  to  the  United  States  after

          deportation and  having been convicted of an aggravated felony in

          violation of 8 U.S.C.   1326(a) and (b)(2).  On January 19, 1993,

          Smith  moved  to  dismiss the  indictment,  maintaining  that the

          deportation   proceeding    underlying   his    deportation   was

          fundamentally unfair  and that  he was  functionally deprived  of

          judicial  review and  due  process.   On  January  21, 1993,  the

          district court held  a hearing with respect to  Smith's motion to

          dismiss, and  then denied the motion.  On February 1, 1993, Smith

          entered a conditional plea of  guilty, and preserved his right to

          seek  review  of  the  denial   of  his  motion  to  dismiss  the

          indictment.

                    At the sentencing hearing on April 8, 1993, Smith moved

          for  a downward departure  from the applicable  sentencing range.

          Smith   argued  that  the  government  engaged  in  actions  that

          mitigated  his conduct when  the INS gave  him Form  I-294 at the

          time of his deportation, which incorrectly stated the  penalty he

          would  face if  he returned  to the  United States.   Smith  also

          submitted an affidavit stating that  he relied on Form I-294 when

          he decided  to return to the  United States.   The district court

          denied Smith's motion  for a downward departure,  indicating that

          it  would be  antithetical to  the  policy behind  the Sentencing

          Reform Act, which  is to deter people from  committing crimes, to

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grant  his  motion, given  that  the  facts indicated  Smith  had

          knowingly committed a felony.  The district court  then sentenced

          Smith to 70 months in prison.

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II.  THE MOTION TO DISMISS THE INDICTMENT
                      II.  THE MOTION TO DISMISS THE INDICTMENT

                    Smith claims that he was denied his right to counsel at

          the  September 27, 1991 deportation hearing.  Specifically, Smith

          claims  that the  immigration  judge  erred  at  his  deportation

          hearing either by compelling  him to go forward unrepresented  or

          by not explicitly asking him whether  he wanted representation at

          the  deportation hearing.    Therefore,  Smith  seeks  to  attack

          collaterally the original  order of deportation, arguing  that it

          cannot properly  serve as  the basis for  his indictment  under 8

          U.S.C.   1326.1

                    To  provide a  basis  to  attack  a  deportation  order

          collaterally  in a subsequent  criminal prosecution,  a defendant

          must  show  that  any  error   committed  with  respect  to   the

____________________

          1  8 U.S.C.   1326 (Supp. 1993) provides in pertinent part:

                    (a)  Subject   to  subsection  (b)   of  this
                    section, any alien who --

                      (1)  has been  arrested  and deported  or
                      excluded and deported, and thereafter
                      (2) enters, attempts to  enter, or is  at
                      any  time found  in,  the United  States,
                      . . . 

                    shall be fined under  Title 18, or imprisoned
                    not more than 2 years, or both.

                    (b)   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 15 years, or both.

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deportation hearing  violated his  due process  rights, and  that

          this   error  was   "'so   fundamental'   that  it   'effectively

          [eliminated] the right  of the alien to obtain judicial review'".

          United States v. Vieira-Candelario, 6 F.3d 12, 15 (1st Cir. 1993)
          _____________    _________________

          (quoting United States v.  Mendoza-L pez, 481 U.S. 828, 837-39  &
           _______ _____________     _____________

          n.17   (1987)).      "'[W]here  a   determination   made   in  an

          administrative proceeding  is  to play  a  critical role  in  the

          subsequent imposition of a criminal  sanction, there must be some
                                                                       ____

          meaningful review  of the  administrative proceeding.'"   Vieira-
                                                                    _______

          Candelario, 6 F.3d at 15 (quoting Mendoza-L pez, 481 U.S. at 837-
          __________                _______ _____________

          38).

                    The  First  Circuit  has  recently  considered  a  case

          analogous to the present situation, and its  holding controls our

          decision here.    In  Vieira-Candelario,  the  immigration  judge
                                _________________

          apparently erred in  ruling that the  defendant was not  eligible

          for  a  waiver  pursuant  to    212(c)  of  the  Immigration  and

          Naturalization Act,  8 U.S.C.    1182(c).   6  F.3d at  15.   The

          immigration  judge advised the  defendant regarding his  right to

          appeal.   Id. at 13.    The day after the  hearing, the defendant
                    __

          did, in fact,  file a notice of appeal in which he challenged the

          immigration judge's  ruling.  Id.   The issue was  never reached,
                                        __

          however,  because the  defendant  withdrew  his  appeal  and  was

          deported shortly  after doing so.   Id.  INS  agents subsequently
                                              __

          found Vieira in  Providence, Rhode Island,  and charged him  with

          violating  8 U.S.C.    1326.    Id.   Vieira moved  to  quash the
                                          __

          indictment   and  to  dismiss   the  indictment  by  collaterally

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attacking  the deportation  order,  arguing  that  it  could  not

          properly serve as  the basis for his indictment under  8 U.S.C.  

          1326.  Id.  In rejecting the defendant's collateral attack on the
                 __

          deportation order, this Court observed:

                      Here,  in contrast  to  the situation  in
                      Mendoza-L pez,  the  immigration  judge's
                      _____________
                      putatively  erroneous  decision  did  not
                      "effectively" rob Vieira of his right  to
                      review.  Vieira filed a notice of appeal.
                      He   later   deliberately   withdrew  the
                      appeal.   He was  represented by  counsel
                      throughout.      As   Vieira  voluntarily
                      abandoned his right  to obtain review  of
                      the deportation  order, we see  no way to
                      hold that  he was deprived  of meaningful
                      review of  the administrative  proceeding
                      contrary to the due process clause.

          Id. at 15.
          __

                    Smith  claims that the  immigration judge erred  at the

          deportation hearing by denying him his right to counsel.   At the

          conclusion of the deportation  hearing, however, the  immigration

          judge  explained the appeal process to Smith, which required that

          a  notice  of appeal  be  filed  with  the Board  of  Immigration

          Appeals.   Smith  then availed  himself of  his right  to appeal,

          albeit  not on the  ground that he  was deprived of  his right to

          counsel.  The  appeal process then ended only  because Smith, and

          his  attorney, Mr. Carrigan, sent letters to the INS deliberately

          withdrawing the appeal.

                    While this  case does differ from  Vieira-Candelario in
                                                       _________________

          that Smith claims that he was deprived of his right to counsel at

          the  deportation hearing, this difference does not alter the fact

          that  Smith  was afforded  the  opportunity  to appeal  from  the

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immigration  judge's decision.    The fact  that  Smith filed  an

          appeal  demonstrates that  he  understood  his appellate  rights.

          Moreover,  Smith consulted with his attorney regarding the appeal

          process, as evidenced by the fact that Attorney Carrigan, as well

          as Smith, sent a  letter to the INS withdrawing the  appeal which

          Smith did file.  Additionally, while Smith did not appeal on  the

          ground  that he had been deprived of  counsel, he could have done

          so.    Because  nothing  that  happened  in  Smith's  deportation

          proceeding  affected his ability to appeal, his collateral attack

          on the deportation hearing must fail.

                                   III.  SENTENCING
                                   III.  SENTENCING

                    Smith challenges the district court's refusal  to grant

          him a downward  departure from the sentencing range  set forth in

          the Sentencing  Guidelines.  Smith  argues that by virtue  of the

          form the INS gave him at the time of his deportation, INS Form I-

          294,  the government erroneously informed him of the consequences

          of returning unlawfully to the country.  The INS told Smith  that

          the  maximum penalty  he would face  was two  years imprisonment,

          instead of the correct penalty  of 15 years.  Smith submitted  an

          affidavit stating that  he relied upon this form  when he decided

          to return to  the United  States, and  that had he  known of  the

          higher  penalty he would face, he  would not have returned to the

          United States.  Therefore, Smith contends that this constituted a

          mitigating circumstance  that the  Sentencing Commission  had not

          taken  into account  when it  formulated  the guidelines,  and it

          warranted a downward  departure.  Smith argues  that the district

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court improperly denied  his motion by concluding  that it lacked

          the legal  authority to consider  the INS  notice as a  basis for

          departure under the Sentencing Guidelines.

                    The   government  argues   that   the  district   court

          understood  that it  had the  power to  consider whether  the INS

          notice  provided a  ground  for  departure  from  the  Sentencing

          Guidelines.   But, the  government contends,  the district  court

          simply refused to exercise its discretion to depart downward.

                    Ordinarily, a district court's  refusal to exercise its

          discretion  and depart downward from the sentencing guidelines is

          not appealable.  United States v. Lombardi, 5 F.3d  568, 571 (1st
                           _____________    ________

          Cir. 1993);  United  States v. Rushby, 936 F.2d 41,  42 (1st Cir.
                       ______________    ______

          1991).   Appellate jurisdiction  may attach,  however, where  the

          district court's decision  not to depart is based  on the court's

          view that it  lacks the legal authority to  consider a departure.

          United States v. Romolo, 937 F.2d 20, 22-23 (1st Cir. 1991).  The
          _____________    ______

          record  can be  fairly read  to support  the conclusion  that the

          district  court believed  that it lacked  the legal  authority to

          depart  under the  Guidelines on  the basis  of the  INS notice.2

          Thus,  we review  the  district  court's  decision  to  determine

          whether or  not, it  did, in  fact, possess  the power  to depart

          downward based on this circumstance.

                    Plenary  review is  appropriate where  the question  is

____________________

          2  If we were to conclude that the district court understood that
          it had the power to  depart downward, but chose not to do  so, we
          would not have  jurisdiction to consider Smith's  appeal, and the
          district court's sentence would stand.

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"whether  or not the  allegedly special circumstances  (i.e., the

          reasons for departure) are of  the 'kind' that the Guidelines, in
                                                                         __

          principle,  permit  the  sentencing court  to  consider  at all."
          _________

          United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993).
          _____________    ______

                    Under the  Sentencing Reform  Act, a  court may  depart

          downward if it finds that there was a mitigating circumstance "of

          a  kind"   which the  Sentencing  Commission did  not "adequately

          take[] into  consideration .  . .  in formulating  the guidelines

          that should result in a sentence different from that  described."

          18 U.S.C.   3553(b); U.S.S.G.    5K2.0, p.s.; Rivera, 994 F.2d at
                                                        ______

          946-47.   If the court  finds that the sentencing  commission did

          not  adequately take a  circumstance into consideration,  it must

          then  determine if  the circumstance  is of  a kind  which should

          justify a departure.  To  make this determination, a court should

          look  to  the  sentencing system's  purposes  and  the guidelines

          themselves.  See Rivera, 994 F.2d at 947, 949.  18  U.S.C.   3553
                       ___ ______

          specifies  the purposes which the sentencing system is attempting

          to  achieve,  and  provides that  in  determining  the particular

          sentence  to be  imposed, a  court should  consider, among  other

          factors, the  need for the  sentence imposed "to  promote respect

          for  the law,"  and "to  afford adequate  deterrence  to criminal

          conduct."  18 U.S.C.   3553(a)(2)(A) & (B).

                    We do not  believe that when the  Sentencing Commission

          formulated  its guidelines,  it considered  an unusual  situation

          like the present one.   Despite this lack of prior consideration,

          however, this situation does not present the kind of circumstance

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a   sentencing  court  should  consider  to  support  a  downward

          departure.

                    Smith contends that  because he relied on an INS notice

          that misstated the criminal penalty he would face if he illegally

          returned to  the United States,  he should be granted  a downward

          departure.  Smith's contention runs counter  to a primary purpose

          of the  sentencing system,  which is to  deter criminal  conduct.

          The  Sentencing Guidelines were  established, in part,  to create

          penalties  which were  high  enough  to  discourage  people  from

          committing a particular  crime.  Smith implicitly  admits that he

          intentionally  committed a felony.   The sentencing  court cannot

          countenance  Smith's purposeful decision  to engage  in felonious

          conduct, and  grant  him the  benefit  of a  downward  departure,

          because  Smith  understood  the  penalty  he  would  face  to  be

          relatively minor.  Rather,  the sentencing court was  required to

          sentence  Smith within the  applicable sentencing range,  so that

          Smith and others would be  deterred from illegally reentering the

          country in  the future.  Therefore, the  district court's finding

          that this was not the kind of circumstance  that should justify a

          downward departure was proper, and its decision is affirmed.

                    Affirmed.
                    ________

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