Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-1995

United States of America v. DeLeon-Rodriguez
Precedential or Non-Precedential:

Docket 95-1299




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                   ___________

                   No. 95-1299
                   ___________


             UNITED STATES OF AMERICA

                        v.

          JESUS RHADAMES DELEON-RODRIGUEZ

                         Jesus Rhadames-Rodriguez,
                                              Appellant

_______________________________________________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
        (D.C. Criminal No. 94-cr-00447)
              ___________________


              Argued October 19, 1995

Before:   SCIRICA, COWEN and ROTH, Circuit Judges

             (Filed November 30, 1995)


                  DAVID L. McCOLGIN, ESQUIRE (ARGUED)
                  ELAINE DeMASSE, ESQUIRE
                  Defender Association of Philadelphia
                  Federal Court Division
                  Lafayette Building, Suite 800
                  437 Chestnut Street
                  Philadelphia, Pennsylvania 19106-2414

                    Attorneys for Appellant


                  TIMOTHY S. SUSANIN, ESQUIRE (ARGUED)
                  Office of United States Attorney
                  615 Chestnut Street, Suite 1250
                  Philadelphia, Pennsylvania 19106

                    Attorney for Appellee


                        1
2
                          __________________

                         OPINION OF THE COURT
                          __________________


SCIRICA, Circuit Judge.



          The central issue in this criminal appeal is whether

8 U.S.C. § 1326(b)(2) makes a prior conviction for an aggravated

felony an element of the offense, requiring proof for conviction,

or whether it is a penalty enhancement provision under 8 U.S.C.

§ 1326(a), which sets forth the elements of the offense.

                                  I.

          On May 14, 1990, Jesus Rhadames DeLeon-Rodriguez, a

citizen of the Dominican Republic, was convicted of delivery of

cocaine in the Court of Common Pleas of Berks County,

Pennsylvania and sentenced to eighteen to sixty months

imprisonment.   As a result of his conviction he was deported to

the Dominican Republic on May 17, 1991.

          On July 28, 1994 Rodriguez was again arrested in Berks

County on drug related charges.       After notification by the local

police, the Immigration and Naturalization Service interviewed

Rodriguez about his immigration status.       During the interview

Rodriguez admitted he had been deported in 1991 and that he had

illegally reentered the United States in 1993 by boat at

San Juan, Puerto Rico.    After receiving Miranda warnings,
Rodriguez invoked his right to counsel and no further questions

were asked.




                                  3
              Rodriguez was charged by the government with illegal

reentry after deportation in violation of 8 U.S.C. § 1326(b)(2)

(1994), which provides:
          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 20 years, or
          both.1


1
    1.   8 U.S.C. § 1326 (1994) provides:

    (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, unless (A)
          prior to his reembarkation at a place outside
          the United States or his application for
          admission from foreign contiguous territory,
          the Attorney General has expressly consented
          to such alien's reapplying for admission; or
          (B) with respect to an alien previously
          excluded and deported, unless such alien
          shall establish that he was not required to
          obtain such advance consent under this
          chapter of any prior Act,
      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 --
            (l) whose deportation was subsequent to a
          conviction for commission of three or more
          misdemeanors involving drugs, crimes against
          the person, or both, or a felony (other than
          an aggravated felony), such alien shall be
          fined under Title l8, imprisoned not more
          than l0 years, or both; or
            (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 20 years, or
          both.



                                    4
Rodriguez was convicted at a bench trial and sentenced to

seventy-two months imprisonment.2      This appeal followed.   We have

jurisdiction under 28 U.S.C. § 1291, as well as 18 U.S.C.

3742(a).    United States v. Shoupe, 

(3d Cir. 1993).

                                 II.

            The principal question raised in this appeal is whether

a prior conviction for an aggravated felony is an element of

8 U.S.C. § 1326(b)(2) or simply a condition triggering an

enhanced penalty.    At trial, Rodriguez sought dismissal of his

indictment for failure to state an offense, because it omitted

what he claims is an essential element of the offense --

deportation subsequent to a conviction for an aggravated felony.

The district court held this was not an element of the offense

and denied the motion.3   We exercise plenary review.

            Several other circuits have already addressed this

issue.4    Of those, all but one has held that § 1326(b)(2) is a

2
  2. At sentencing, the district court determined that Rodriguez
had been deported after commission of an aggravated felony.
3
  3. The district court also determined that Rodriguez's motion
to dismiss the indictment based on this alleged defect was
untimely. On appeal, the government did not argue timeliness or
waiver. Fed. R. Crim. P. 12(f) vests a district court with
general power to determine that a party has waived a right to
object or raise a defense after having failed to advance it in a
timely manner. Yet Fed. R. Crim. P. 12(b)(2) delineates two
objections, or defenses, which "shall be noticed by the court at
any time during the pendency of the proceedings"--a failure to
show jurisdiction in the court and a failure to charge an
offense. See United States v. Cury, 

, 343 (3d Cir.
1963).      In view of this, we believe the motion was timely.
4
 4. In United States v. Eversley, 

(3d Cir. 1995), we
explained "we need not address the question ... whether
§1326(b)(1) and (2) constitute sentence enhancement provisions
rather than offenses distinct from § 1326(a)." 

n.3.


                                  5
sentencing enhancement provision.       See United States v. Palacios-

Casquete, 

, 559 (11th Cir. 1995), petition for cert.

filed (Sept. 5, 1995) (No. 95-5849); United States v. Munoz-

Cerna, 

, 210 n.6 (7th Cir. 1995) ("the better view is

that the subsections [of § 1326] are sentence enhancements);

United States v. Cole, 

, 18 (2d Cir.), cert. denied,

(1994); United States v. Crawford, 

,

1177 (4th Cir.), cert. denied, 

(1994); United

States v. Forbes, 

, 1297-30 (1st Cir. 1994); United

States v. Vasquez-Olvera, 

, 945 (5th Cir. 1993),

cert. denied, 

(1994); but see United States v.

Campos-Martinez, 

(9th Cir. 1992).      Upon examining

the language and structure of § 1326(b), we too are convinced it

is a sentencing enhancement provision rather than an offense

distinct from § 1326(a).

              Section 1326(a) sets out the elements of the offense

(arrest, deportation, and re-entry) and certain penalties (fine

and two-year maximum imprisonment), while subsection (b)(2) sets

forth no elements but only provides for stiffer penalties based

on criminal history (after conviction of an aggravated felony).

Section 1326(b) itself sets forth no elements of an offense.5 The

language and structure make clear that § 1326 is a sentencing

enhancement provision only.

              The Court of Appeals for the Second Circuit shares our

view that the structure of § 1326 as a whole demonstrates that


5
    5.   Section 1326(b) is set out in full in footnote 1.


                                    6
§1326(b) is an enhancement provision.     United States v. 

.   The Courts of Appeals for the Fourth and Fifth

Circuits reached the same conclusion under a "plain language"

analysis of § 1326.    

; 

.

          In addition, the title assigned to § 1326 supports the

view that it outlines a single offense with varying penalties.

Before the 1988 amendments, the section was entitled "Reentry of

deported alien;" after the amendments, it reads ""Reentry of

deported alien; criminal penalties for reentry of certain

deported aliens."     8 U.S.C. § 1326.   As the Fourth Circuit

explained, "[t]his change in title indicates that, by amending

§1326, Congress intended to create enhanced penalties for

'certain' aliens who commit the underlying offense of unlawfully

reentering the United States after having been previously

deported, not to create a separate substantive offense."

; see also 

; 

(looking to "evolution of

§ 1326 through its various amendments" to conclude it defines one

substantive crime).

          The Court of Appeals for the First Circuit also

construes § 1326(b) as an enhancement provision, but relies

principally on a public policy argument.     Referring to

evidentiary rules and decisional law, the court found strong

policy reasons to exclude or limit information about prior

convictions at trial, citing the possibility of undue prejudice.

Interpreting § 1326(b) to require proof at trial of conviction of


                                  7
a prior offense would contravene this principle.      In the absence

of explicit congressional direction, the court explained it was

"reluctant to impose that burden on defendants."      

.

              Only the Court of Appeals for the Ninth Circuit has

reached the conclusion that § 1326(b)(2) is not an enhancement

provision.      The first appellate court to consider the question,

it found the different subsections of 8 U.S.C. § 1326 delineate

separate offenses, the elements of which must be proven at trial,

not just at sentencing.      See, e.g., United States v. Arias-

Granados, 

(9th Cir. 1991); United States v.

Gonzales-Medina, 

(9th Cir. 1992); United States v.

Campos-Martinez, 

(9th Cir. 1992).      While two earlier

Ninth Circuit panels reached this conclusion without explanation,

in United States v. Campos-Martinez, the Ninth Circuit set forth

the reasons for its holding.      Although citing the precedent of

Arias-Granados, the court relied on its interpretation of 8

U.S.C. § 1325 as a guide in interpreting § 1326.6     Section

6
    6.   8 U.S.C. § 1325(a) (1994) provides:

              Any alien who (1) enters or attempts to enter
              the United States at any time or place other
              than as designated by immigration officers,
              or (2) eludes examination or inspection by
              immigration officers, or (3) attempts to
              enter or obtains entry to the United States
              by a willfully false or misleading
              representation or the willful concealment of
              a material fact, shall, for the first
              commission of any such offense, be fined
              under Title 18 or imprisoned not more than 6
              months, or both, and, for a subsequent
              commission of any such offense, be fined

                                    8
1325(a) makes illegal entry a crime with a maximum sentence of

six months imprisonment.    The same section provides that illegal

entry after a previous conviction for illegal entry is a separate

crime with a maximum two year sentence.        

.    The court found that because "[s]ections 1325 and

1326 are similar in structure, operation, purpose, and subject

matter . . . section 1325 provides the best analogy" available in

interpreting § 1326, and therefore § 1326 ought to be understood

as delineating distinct offenses.        

            We are not convinced.       Instead, like the Second, Fourth

and Fifth Circuits, we believe the language and structure of

§ 1326 establish that § 1326(b)(2) is a sentencing enhancement

provision rather than an offense distinct from § 1326(a).         We

will affirm the district court's denial of Rodriguez's motion to

dismiss the indictment on the grounds it failed to state an

offense.

                                III.

            Rodriguez contends the district court should have

granted him a reduction in his offense level for having "accepted

responsibility," under U.S.S.G. § 3E1.1.(a)(1994), which permits

a reduction "[i]f the defendant clearly demonstrates acceptance

of responsibility for his offense."

            Whether a defendant has "accepted responsibility" is a

factual matter and is reviewed under a "clearly erroneous"

standard.   See United States v. Rodriguez, 

, 1008

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

                                    9
(3d Cir. 1992).    "The sentencing judge is in a unique position to

evaluate a defendant's acceptance of responsibility.      For this

reason, the determination of the sentencing judge is entitled to

great deference on review."     Application Note 5 to U.S.S.G.

§ 3E1.1.

             A defendant bears the burden of establishing by a

preponderance of the evidence that a reduction under this

provision is warranted.    

.    Rodriguez

advanced several factors to support his request for an offense

level reduction.    Looking to his pretrial conduct, Rodriguez

characterizes his interview with the INS agent as a "confession."

Brief for Appellant at 4.     As for his subsequent conduct, he

contends that at trial he "did not contest any of the factual

allegations of the government . . . did not deny or even move to

suppress [his] confession, and . . . did not present any

evidence."    Brief for Appellant at 5.   Moreover, Rodriguez

characterizes his objections during trial as "purely legal ones,"

and points to his limited cross-examination of the government's

witnesses.    Also, near the end of the trial, Rodriguez sought to

enter a Zudick guilty plea, conditioned on a determination of a

preserved appellate issue.     United States v. Zudick, 

, 851 (3d Cir. 1975).    Overall, Rodriguez contends he

effectively left unchallenged the government's case against him

and contested only selected legal issues but not the central fact

of the case -- that he had illegally reentered the United States

after deportation.




                                  10
          The district court disagreed.   It found that

Rodriguez's brief initial statements during the interview with

the INS agent did not manifest an acceptance of responsibility.

Furthermore, the court found the government was "put to the test

in its offering of evidence."   Among other challenges, Rodriguez

contested the testimony of the police officer who found him in

the United States subsequent to deportation; questioned the

relevance of the government's evidence on INS deportation

procedures and the credibility of evidence in the INS file;

cross-examined the government's witness about his personal

knowledge of Rodriguez's deportation; attacked the quality and

accuracy of the government's fingerprint evidence; and sought to

exclude INS exhibits and documentary evidence which went to an

essential element of the offense and to the heart of the

prosecution's case.

          After examining the record we find no error.

Application Note 2 to § 3E1.1 explains that a reduction is

generally not meant to apply to a defendant who puts the

government to its burden of proof at trial.   While the

Application Note adds that "[c]onviction by trial . . . does not

automatically preclude a defendant from consideration for such a

reduction," it suggests that a reduction should be granted only

in "rare situations," such as when a "defendant goes to trial to

assert and preserve issues that do not relate to factual guilt

(e.g., to make a constitutional challenge to a statute or a

challenge to the applicability of a statute to his conduct)." The

district court found that Rodriguez "contested his factual guilt


                                11
. . . beyond a mere legal challenge."   Appendix at 136a. We

agree.

                              IV.

          We will affirm the judgment of conviction and sentence.




                               12
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