United States v. Troncoso

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-2130

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  RADHAME TRONCOSO,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
                                                 ___________________

                                 ____________________

                                        Before

                           Selya and Boudin, Circuit Judges,
                                             ______________
                             and Carter,* District Judge.
                                          ______________

                                 ____________________

            Gordon  R.  Blakeney,  Jr.,  by  Appointment  of  the  Court,  for
            __________________________
        appellant.
            Jean B. Weld, Assistant United States  Attorney, with whom Paul M.
            ____________                                               _______
        Gagnon, United States Attorney, was on brief for appellee. 
        ______

____________________

                                     May 18, 1994
                                 ____________________

        ____________________

        *Of the District of Maine, sitting by designation.

CARTER, Chief District Judge.*

                       Radhame  Troncoso  appeals   his  conviction   and

             sentence for  illegal reentry  into the United  States after

             having  been  deported  subsequent   to  conviction  for  an

             aggravated felony, 8 U.S.C.   1326(b)(2).  We affirm.

I.  FACTUAL BACKGROUND
                                I.  FACTUAL BACKGROUND
                                ______________________

                       Appellant,  Radhame  Troncoso, from  the Dominican

             Republic,  has  been   convicted  several   times  of   drug

             trafficking and other related offenses in the United States.

             The conviction  most relevant to  this appeal took  place on

             January  25,  1988,  when   Appellant  was  convicted  in  a

             Massachusetts state court on charges including possession of

             cocaine  with intent  to distribute.   Appellant  served his

             prison sentence and was then turned over to officials of the

             Immigration  and  Naturalization   Service  ("I.N.S.")   who

             deported him  on several grounds, including  conviction of a

             drug  trafficking  offense.    The  deportation  occurred on

             October 26, 1988.  At that time, the I.N.S. warned Appellant

             that if he  returned to the U.S. within five years, he would

             be  guilty of  a felony and  subject to  up to  two years in

             prison as provided for by section 1326,  before that section

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was amended  by the Anti-Drug Abuse  Act of 1988.   8 U.S.C.

               1326.1 

                       Appellant  did  return  undetected to  the  United

             States at some point and was convicted in New York on August

             29,  1991,  on drug-related  charges  but  was not  deported

             following his incarceration.2  He was later arrested  in New

             Hampshire on October 30, 1992, convicted of selling cocaine,

             and  received a suspended sentence in April of 1993.  He was

             also charged with violating  section 1326(b)(2) based on his

             earlier deportation in connection with the January 25, 1988,

             conviction.   Section  1326(b)(2),  which  had been  amended

             since Appellant's  conviction and deportation,  enhanced the
                                 
             ____________________

                       *Of the District of Maine, sitting by designation.

             1Prior to the enactment  of the Anti-Drug Abuse Act  of 1988
             ("ADAA"), section 1326 provided  for a maximum two-year term
                                                    ________________
             of  imprisonment  for  any  alien who  had  been  previously
             arrested  and  deported  and  was  thereafter  convicted  of
             reentry, attempted 
             reentry,  or  being  found  in  the  United  States  without
             permission.   8  U.S.C.   1326  (1987).   When the  ADAA was
             enacted on  November 18, 1988,  section 1326 was  amended to
             provide for a maximum  fifteen-year term of imprisonment for
                           _____________________
             any alien  who was convicted of  reentry, attempted reentry,
             or  being found  in  the U.S.  after having  been previously
             arrested  and  deported  subsequent  to  a   conviction  for
             commission   of   an   aggravated    felony.      8   U.S.C.
               1326(b)(2)(Supp. 1993).

2The  Government  argues  that  Appellant was  not  deported
             following the New  York conviction because he  used an alias
             which prevented I.N.S. agents from identifying him.

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maximum  penalty for  unlawful reentry  from two  to fifteen

             years  for  aliens  who  had  been  deported  subsequent  to

             conviction  for  committing an  aggravated  felony.   See  8
                                                                   ___

             U.S.C.    1326(b)(2)(Supp.  1993).    On  August  30,  1993,

             Appellant  was  convicted  and  sentenced to  60  months  in

             prison.  

II.  DISCUSSION
                                   II.  DISCUSSION
                                   _______________

                       Appellant challenges the  district court's  denial

             of  his  motion  to  dismiss the  indictment,  arguing  that

             Congress did  not intend for section  1326(b)(2), as amended

             by  the Anti-Drug Abuse Act  of 1988, to apply retroactively

             to persons  who  were convicted  and deported  prior to  the

             Act's  effective date.   8  U.S.C.   1326(b)(2).   Appellant

             argues, in the alternative, that applying section 1326(b)(2)

             retroactively  to his case violates the ex post facto Clause
                                                     __ ____ _____

             of the United States Constitution.  U.S. Const. art. I,   9,

             cl.  3.   He  also argues  that  the doctrines  of equitable

             estoppel  and estoppel  by entrapment  bar the  court, as  a

             matter of law, from sentencing him beyond a two-year term of

             imprisonment in light of  the representations made by I.N.S.

             agents  at the time of  his deportation.   Lastly, he argues

             that the  district court erred by treating his New Hampshire

             state conviction as a "prior sentence,"  rather than as part

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of  the  instant offense  of  violating section  1326(b)(2),

             pursuant   to   section   4A1.2(a)(1)   of   the  Sentencing

             Guidelines.  U.S.S.G.   4A1.2(a)(1).

                              A.  Statutory Construction
                              A.  Statutory Construction
                              __________________________

                       Appellant's    first     argument    focuses    on

             Congressional  intent   with  respect  to   the  retroactive

             application  of  section  1326(b).    8  U.S.C.    1326(b).3
                                 
             ____________________

             3Section 1326 provides in pertinent part that:

                            (a) Subject to subsection (b),
                            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,
                                 t h e    U n i t e d
                                 States . . . 

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

                            (b) Notwithstanding subsection
                            (a), in the case of  any alien
                            described  in  such subsection
                            -- 
                                      .      .  
                                      .     .   
                                      .   
                                 ( 2 )      w h o s e
                                 deportation      was

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Section 1326(b) was added to the Immigration and Nationality

             Act  ("INA") on November 18, 1988, when Congress enacted the

             Anti-Drug Abuse Act  of 1988 ("ADAA"). See  Pub. L. 100-690,
                                                    ___

             Title VII,  Subtitle J,   7345(a), 102  Stat. 4471 (codified

             as amended  at 8  U.S.C.   1326(b)(1988)).   Apart  from the

             statutory text,  the Act provided that  the amendment adding

             section  1326(b)  "shall  apply  to any  alien  who  enters,

             attempts to enter, or  is found in, the United  States on or

             after the date of the enactment of this Act."  The ADAA also

             added  a provision  to  the INA  defining  the new  term  of

             "aggravated  felony" to include  murder, illicit trafficking

             in any controlled substance, money laundering, and crimes of

             violence  carrying at  least 5 years  of imprisonment.   See
                                                                      ___

             Pub. L.  100-690, Title VII,  Subtitle J,   7342,  102 Stat.

             4469  (codified as amended at 8 U.S.C.   1101(a)(43)(1988)).

             The  Act did  not include  a section  limiting  the temporal

             applicability of the "aggravated felony" definition.  
                                 
             ____________________

                                 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.

                       8 U.S.C.   1326 (Supp. 1993).

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The parties do  not dispute that  Appellant's drug

             conviction,  which precipitated  his deportation  on October

             26, 1988,  falls into the definition  of "aggravated felony"

             in section 1101(a)(43).   8 U.S.C.   1101(a)(43).  The issue

             in  dispute  is   whether  Congress  intended  for   section

             1326(b)(2), as it incorporates section 1101(a)(43), to apply

             retroactively  to an  alien who  was convicted  and deported

             prior  to the ADAA amendments.   In Matter  of A-A-, Interim
                                                 _______________

             Dec.  3176  (BIA 1992),  the  Board  of Immigration  Appeals

             interpreted the  plain language  of the  amended provisions,

             along  with the  applicability section  accompanying section

             1326(b),  and  concluded   that  the  enhanced  fifteen-year

             criminal penalty is:

                            applicable  to `any  alien who
                            enters,  attempts to  enter or
                            is found in, the United States
                            on  or  after   the  date   of
                            enactment of [the November 18,
                            1988]  Act.' . . .     For  an
                            alien  reentering  the  United
                            States  on November  18, 1988,
                            to   be   subject   to   these
                            criminal penalties,  the alien
                            would need to have  suffered a
                            conviction   and   deportation
                            before November 18, 1988.   It
                            would be virtually  impossible
                            for an alien  convicted of  an
                            aggravated  felony to  reenter
                            or  be  found  in  the  United
                            States   on    the   date   of
                            enactment      unless      the
                            definition    of    aggravated

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felony   included  convictions
                            occurring before that date. 

             This  Court  adopted  the  BIA's reasoning  in  Barreiro  v.
                                                             ____________

             I.N.S.,   989  F.2d   62   (1st  Cir.   1993)(upholding  the
             ______

             retroactive application of  the aggravated felony definition

             as  it  was  incorporated  into a  "waiver  of  deportation"

             provision,  serving to  bar  a  seven-year domiciliate  from

             seeking a waiver from deportation pursuant to section 212(c)

             of the INA, 8 U.S.C.   1182(c)(Supp. 1992)).  In a case very

             similar to the facts  at hand, U.S. v. Forbes, 16  F.3d 1294
                                            ______________

             (1st  Cir.  1994),  this  Court upheld  a  conviction  under

             section  1326(b)(2) based  on aggravated  felony convictions

             that  occurred  prior  to  the effective  date  of  the ADAA

             amendments.  In oral argument, Appellant was unable to point

             to  any case  law in  support of  his position  that section

             1326(b)(2)  was  not intended  to be  applied retroactively.

             Given the law of this  circuit and the plain meaning  of the

             provision,  we affirm  the  district court's  application of

             section 1326(b)(2) to Appellant's conviction.

                         B.  Alleged Ex Post Facto Violation
                         B.  Alleged Ex Post Facto Violation
                         ___________________________________

                       Appellant  argues that  even if  Congress intended

             for  section 1326(b)(2)  to  be  applied retroactively,  the

             effect of retroactive  application in his situation  results

             in  a  violation  of the  ex  post  facto  provision of  the
                                       __  ____  _____

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Constitution.  See U.S.  Const. art. I,   9, cl.  3 (barring
                            ___

             the  retrospective  application  of  laws   that  materially

             disadvantage  a  defendant).    Appellant  argues  that  the

             Government  failed  to  present   evidence  ruling  out  the

             possibility that he returned to the United States subsequent

             to his October, 1988, deportation but prior to  November 18,

             1988,  when the ADAA amendments went into effect.  He argues

             that an ex post facto violation has occurred with respect to
                     __ ____ _____

             him and the class  of convicted-and-deported aliens who were

             in  the country  on the  date of  enactment because  "such a

             person's status is changed, and liability thus increased, by

             an act, of  the legislature,  of which such  persons had  no
                ___  __  ___ ___________

             notice, nor  opportunity to avoid, even  given such notice."

             Appellant's Brief at 27.  

                       In Forbes, this Court held that the inclusion of a
                          ______

             defendant's prior drug convictions  to trigger the  enhanced

             criminal penalties of section 1326(b)(2) did not violate the

             ex  post  facto  Clause,  where  the  convictions  had  been
             __  ____  _____

             obtained prior to the  ADAA amendments.  Forbes, 16  F.3d at
                                                      ______

             1301-02.   Citing Gryger v. Burke, 334 U.S. 728 (1948), this
                               _______________

             Court  reasoned  that   the  enhanced  fifteen-year  penalty

             applies  to the  crime  of  unlawful  reentry and  does  not

             increase the  punishment for  crimes committed prior  to the

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ADAA amendments.  Id. at 1302.   Appellant distinguishes his
                               ___

             situation  by  pointing out  that  the  appellant in  Forbes
                                                                   ______

             committed the offense of  unlawful reentry after the amended
                                                        _____

             section  went  into  effect,   whereas  Appellant  may  have

             committed the offense of unlawful  reentry prior to the ADAA

             amendments.   But  section 1326(a)(2)  defines the  criminal

             conduct  more  expansively   to  include  entry,   attempted

             reentry,  or  being  found  in  the  United  States  without
                           _____  _____  __

             permission.  Appellant was  indicted and convicted of "being

             found  in  the  United   States"  in  violation  of  section

             1326(b)(2).   His offense occurred on October 30, 1992, well

             after  the  ADAA  amendments and  not  on  the  date of  his

             undetected  reentry.   Hence, Appellant  fails to  satisfy a

             critical element for establishing that a criminal law has ex
                                                                       __

             post facto effect; he  fails to demonstrate that the  law is
             ____ _____

             "retrospective, that  is, it must apply  to events occurring

             before  its enactment."  Weaver  v. Graham, 450  U.S. 24, 29
                                      _________________

             (1981); see  also U.S. v. Alvarez-Quintero, 788 F. Supp. 132
                     ___  ____ ________________________

             (D.R.I. 1992)(finding no ex post facto violation where court
                                      __ ____ _____

             applied  an  amended  Sentencing  Guideline  increasing  the

             penalty for reentry  of an alien deported  for an aggravated

             felony,  even when  reentry predated the  amended Guideline,

             because the section 1326(b)(2)  offense occurred on the date

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the alien was found in the United States and not on the date

             of the unlawful reentry).

                C.  Sentencing:  Entrapment by Estoppel and Equitable
                C.  Sentencing:  Entrapment by Estoppel and Equitable
                _____________________________________________________

             Estoppel
             Estoppel
             ________

                       Appellant argues that the court should be estopped

             from   sentencing   him   beyond   two   years    based   on

             representations  made   to  him  by  the   I.N.S.  upon  his

             deportation, indicating that unlawful reentry  could subject

             him to a  maximum two-year prison term.  The  Court need not

             discuss this  argument in detail because  Appellant fails to

             satisfy threshold  elements of  the two  estoppel doctrines.

             First, with respect  to "entrapment by estoppel,"  Appellant

             cannot  show that a  government official erroneously advised

             him that the particular  act for which he was  convicted was

             actually  legal at the time it was committed.  United States
                                                            _____________

             v. Smith, 940  F.2d 710, 714 (1st Cir.  1991).  Second, with
             ________

             respect to equitable estoppel, Appellant cannot show that he

             relied upon a material misrepresentation, because the I.N.S.

             informed  Appellant that he would  face up to  two years for

             unlawful  reentry which was an accurate rendition of the law

             as it existed on  the date of Appellant's deportation.   See
                                                                      ___

             Heckler v. Community Health Services, Inc., 467 U.S. 51,  59
             __________________________________________

             (1984); K-Mart Corp. v. Oriental  Plaza, Inc., 875 F.2d 907,
                     _____________________________________

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912  (1st Cir. 1989)(defining elements of equitable estoppel

             to include a  material misrepresentation of a party  who had

             reason to know  of its falsity and  reasonable reliance upon

             the misrepresentation to the charging party's disadvantage).

             Further, this  Court has recently  held that even  where the

             I.N.S. erroneously informed a  deportee of the penalty faced

             upon  reentry,  such an  error  is not  a  mitigating factor

             justifying   a  downward  departure   under  the  Sentencing

             Guidelines.    U.S.  v.   Smith,  14  F.3d  662  (1st   Cir.
                            ________________

             1994)(holding that, even where  defendant was misinformed as

             to the consequences  of unlawful reentry and stated  that he

             returned  in  reliance  on  the  misrepresentation,  such  a

             circumstance did  not  justify a  downward  departure  where
                                                                    _____

             defendant made a purposeful  decision to engage in felonious
             ____________________________________________________________

             conduct).   Hence,  Appellant's arguments regarding  the two
             _______

             estoppel doctrines are unavailing.

             D.  Sentencing:  Alleged Error in Computing Criminal History
             D.  Sentencing:  Alleged Error in Computing Criminal History
             ____________________________________________________________

                       Appellant argues that the  district court erred in

             determining that his  New Hampshire  conviction for  selling

             cocaine   on  October 30,  1992,   was  a  "prior  sentence"

             resulting in  an additional  two points  being added  to his

             criminal history computation pursuant to section 4A1.2(a)(1)

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of  the Sentencing  Guidelines.    U.S.S.G.    4A1.2(a)(1).4

             Appellant argues  that his  conduct in violation  of section

             1326(b)(2) came to light only through his arrest for selling

             cocaine.  Since "he was found in this country in the process

             of committing that  [state] offense", Appellant argues  that

             the  offense conduct of selling cocaine  should be viewed as

             part  of  the instant  offense and  not  counted as  a prior

             sentence.  See Trial Transcript (Aug. 30, 1993) at 29-30. 
                        ___

                       The  commentary  to  section 4A1.2 defines  "prior

             sentence" as "a sentence imposed prior  to sentencing on the

             instant offense, other  than a sentence for conduct  that is

             part of  the instant  offense."  U.S.S.G.    4A1.2, comment.

             (n.1).   Here, Appellant's state court  sentence was imposed

             in April of 1993,  prior to his August 30,  1993, sentencing

             on  the instant  offense.   Whether  his conduct  in selling

____________________

             4Appellant's  counsel, in  oral argument,  acknowledged that
             his  brief  to this  Court  wrongly used  the  term "related
             cases," referred to in section 4A1.2(a)(2) of the Sentencing
             Guidelines, to refer to the relationship between Appellant's
             prior  New Hampshire  sentence  and the  instant offense  of
             violating  section  1326(b)(2).     8  U.S.C.    1326(b)(2).
             Counsel acknowledged  that "related  cases," as used  in the
             Guidelines,  refers  to   the  relationship  between   prior
             sentences and  whether prior sentences should  be counted as
             one sentence in a defendant's criminal history  and does not
             govern  a court's  assessment  of whether  a prior  sentence
             should  be viewed as part of the  instant offense.  See also
                                                                 ___ ____
             U.S. v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992); U.S. v.
             ______________                                       _______
             Walling, 936 F.2d 469, 471 (10th Cir. 1991).
             _______

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cocaine qualifies as  conduct that was  part of the  instant

             offense  presents  an  issue  of first  impression  in  this

             circuit.     Other  circuit  courts  of   appeal  that  have

             considered the issue have decided the appropriate inquiry is

             whether the "prior sentence" and the instant offense involve

             conduct that is severable into two distinct offenses.   See,
                                                                     ___

             e.g.,  U.S.   v.  Beddow,   957  F.2d  1330,   1338-39  (6th
             ____   _________________

             Cir. 1992)(holding  that  defendant's  state conviction  for

             carrying a  concealed weapon  was not  part  of the  instant

             federal money laundering offense,  even though the concealed

             weapon was  found  at the  time  of defendant's  arrest  for

             attempting to  carry out  money laundering scheme);  U.S. v.
                                                                  _______

             Banashefski,  928 F.2d  349  (10th  Cir. 1991)(holding  that
             ___________

             defendant's state  court conviction for  possessing a stolen

             car was severable from  federal offense of being a  felon in

             possession of a  firearm, even though  firearm was found  in

             car's trunk at time of  defendant's arrest for state  stolen

             vehicle charge).

                       Whether  or  not  the  "prior  sentence"  and  the

             instant  offense  are  severable  entails   a  fact-specific

             inquiry by the district  court.  To the extent  that factual

             issues are involved, the district court's determinations are

             reviewed  under  the  clearly erroneous  standard,  and "due

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deference" is afforded to the "application of the guidelines

             to the facts."   18  U.S.C.   3742(e).   Here, the  district

             court based its findings  on the Government's arguments that

             the only  relation between Appellant's drug  selling conduct

             and his conduct in violating  section 1326(b)(2) is that the

             former violation  set in motion  a chain  of events  whereby

             federal agents  were able to  trace Appellant's fingerprints

             to those of Radhame Troncoso  and the I.N.S. then  retrieved

             his file,  which led to the determination that Appellant was

             in the country in violation of 1326(b)(2).  Trial Transcript

             at  30-31.    The  Government  argued  there  was  no  other

             connection between the conduct  involved in the drug offense

             and the  1326(b)(2)  violation especially  where  the  state

             prosecutor  and  the United  States  Attorney  had to  prove

             totally different  elements with  respect  to each  offense.

             Id.    Based  on   these  arguments,  the  district  court's
             ___

             determination that Appellant's sentence for  selling cocaine

             constituted a severable offense,  and a "prior sentence" for

             the   purpose  of  computing  Appellant's  criminal  history

             category, is not erroneous.

                       The judgment of the district court is AFFIRMED. 
                                                             ________

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