United States v. Vidal-Mejia

Opinion

USCA1 Opinion

October 20, 1994      [NOT FOR PUBLICATION]
                           UNITED STATES COUSRT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-2256 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                              WILFIN ODALIS VIDAL-MEJIA,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
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                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
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                         Campbell, Senior Circuit Judge, and 
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                                Boudin, Circuit Judge.
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                                 ____________________

            James B. Krasnoo on brief for appellant.
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            Donald  K.  Stern,  United  States Attorney,  and  James  F. Lang,
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        Assistant United States Attorney, on brief for appellee.

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                                 ____________________

Per  Curiam.  Appellant, Wilfin Odalis Vidal-Mejia,
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            appeals  from  his  conviction  and  sentence.    His  court-

            appointed  counsel  has filed  a  brief  in conformance  with

            Anders v.  California, 386 U.S. 738 (1976).   Vidal-Mejia was
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            informed by counsel of his right to submit a supplemental pro

            se brief, but has not done so.  We affirm. 

                                      Background
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                 In April,  1993, Vidal-Mejia was charged  in a one-count

            indictment   with  illegal   reentry  after   deportation  in

            violation of 8  U.S.C.   1326(a)  and (b)(2).   Specifically,

            the  indictment  charged that  after  having been  previously

            arrested and deported following  a conviction for  commission

            of an aggravated felony, Vidal-Mejia was found in the  United

            States on or about March 7, 1993, without having received the

            permission of the Attorney General to reapply for admission.

                 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.    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
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                 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  exess of two years;  3) a sentence  in excess of

            two years  violates  the  Due Process  Clause  of  the  Fifth

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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.

                 1) Failure to Depart.  In denying appellant's motion for
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            a downward  departure  on  the  basis of  the  erroneous  INS

            notice,  the  district   court  concluded  that   "deterrence

            necessitates  a more severe  sentence than that  to which the

            defendant asked me to depart," and that "I  have no basis for

            departure in the law."  We conclude from this record that the

            district court determined that  it lacked the legal authority

            to consider a  departure on the basis of the  INS notice.  We

            therefore  have   jurisdiction  to   review,  de   novo,  the

            correctness  of  that  determination. See  United  States  v.
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            Smith, 14 F.3d  662, 666 (1st  Cir. 1994).  We  addressed the
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            identical question in Smith  and concluded that the erroneous
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            INS notice  "does  not present  the  kind of  circumstance  a

            sentencing  court  should  consider  to  support  a  downward

            departure."  Id. at  666.   Therefore,  the district  court's
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            denial  of Vidal-Mejia's motion for a departure on that basis

            was entirely proper.

                 2)  Estoppel.   Appellant argues  that the  doctrines of
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            entrapment  by  estoppel  and  equitable  estoppel   bar  the

            imposition  of  a  sentence in  excess  of  two  years.   The

            "entrapment  by  estoppel"  argument  is  foreclosed  by  our

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decision  in United States v. Troncoso, 23 F.3d 612, 615 (1st
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            Cir. 1994) (rejecting "entrapment by estoppel" argument under

            almost  identical  circumstances because  "[a]ppellant cannot

            show that  a government official erroneously  advised him the

            particular act for which he  was convicted was actually legal

            at the time that it was committed").  

                 In United States v. Troncoso, supra, we also rejected an
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            equitable estoppel argument, but on the ground that there was

            no  material misrepresentation.   In  that case,  unlike this

            one,  the two-year maximum contained in the INS notice was an

            accurate rendition  of the law as  it existed at the  time of

            appellant's  deportation.   We  cited our  holding in  Smith,
                                                                   _____

            however, to suggest that  even had appellant been misinformed

            of  the  consequences  of unlawful  reentry  and  purportedly

            relied thereon in deciding to return, "[t]he 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." Smith,  14 F.3d at 666.   See also
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            Troncoso, 23 F.3d at 616.
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                 In United States v. Perez-Torres,  15 F.3d 403 (5th Cir.
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            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.
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Automotive M.M. Co., 324 U.S. 806  (1945)), the Fifth Circuit
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            concluded that the willful and knowing commission of a felony

            (illegal reentry)  cannot constitute the  reasonable reliance

            required by the equitable estoppel doctrine. Perez-Torres, 15
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            F.3d  at   407.    See   also  Akbarin  v.   Immigration  and
                               ___   ____  _______       ________________

            Naturalization  Service, 669  F.2d 839,  844 (1st  Cir. 1982)
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            (noting that a "petitioner's unclean hands . . . may preclude

            him  from  asserting estoppel  against  the  Government"). We

            agree  with  the  Fifth  Circuit and  conclude  that  because

            appellant  cannot show  "reasonable reliance,"  his equitable

            estoppel argument is without merit.

                 3) Due Process.  This court has not previously addressed
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            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
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            United States  v. Samaniego-Rodriguez, Nos.  93-3015 and  93-
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            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
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            Cir. 1994);  United States  v. Ullyses-Salazar, 28  F.3d 932,
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            936  (9th Cir. 1994); Perez-Torres, 15 F.3d at 406.  We agree
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            with the following reasoning of the Fifth Circuit:

                 As  [appellant] concedes, section  1326 clearly and
                 unambiguously articulated  the penalties associated
                 with a  reentry offense.   Thus, regardless  of the
                 inaccuracy of  Form I-294, the statute  under which
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                 Perez  was  convicted provided  notice  adequate to
                 satisfy the requirements of due process.

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Id. at 406 (emphasis in original). 
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                 4)  Rule ll.   Appellant's  final  argument is  that his
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            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.

                 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."

                 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
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(1st Cir. 1991).  The district judge summarized the charge as

            follows:

                 Now, before I  can find you guilty  of the offense,
                 even  on your plea, I have to be 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.

            At the court's  request, the government then  stated what its

            evidence would be if the case were to proceed to trial.

                 The district  court's description of the  charge did not

            specify that    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
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            1246 (explanation  of charge may come from  the prosecutor in

            the court's presence).  Moreover, in United States v. Forbes,
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            16 F.3d  1294, we held  that   1326(a)  and   1326(b)  do not

            describe separate criminal  offenses with different  elements

            and maximum penalties.  Instead, we concluded that   1326 (b)

            should be construed as a sentence  enhancement provision. Id.
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            at 1297-1300.  Therefore, the alleged failure specifically to

            inform   appellant of the prior aggravated felony aspect of  

            1326(b)  did not violate Rule 11 where the court ensured that

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appellant  understood  that the  maximum penalty  was fifteen

            years.

                 Appellant's brief  indicates that counsel  conducted the

            requisite review and  analysis of the  case. See Anders,  386
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            U.S.  at  744.    Having carefully  reviewed  the  record  in

            accordance with  our obligation  under Anders, we  agree that
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            the  appeal  is indeed  without  merit.   The  conviction and

            sentence are summarily affirmed pursuant to Loc. R. 27.1.
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