USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1667
UNITED STATES,
Appellee,
v.
GERALDO O'CAMPO,
A/K/A REYES FAMILIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Owen S. Walker on brief for appellant.
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Donald K. Stern, United States Attorney, and Jeanne M.
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Kempthorne, Assistant United States Attorney, on brief for appellee.
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September 2, 1994
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Per Curiam. Defendant Geraldo O'Campo, a citizen of the
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Dominican Republic, was deported to that country in March
1991 after having been convicted of various drug offenses.
He thereafter returned to the United States without
permission. Upon being apprehended in July 1992, he was
indicted on a single count of violating 8 U.S.C. 1326(a)
and (b)(2).1 He subsequently pled guilty to this charge and
received a prison term of 46 months. Defendant now advances
a single challenge to his sentence, arguing that the district
court mistakenly concluded it lacked the authority to depart
downward in one particular respect. We find no error and
therefore affirm. See Loc. R. 27.1.
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I.
At issue is a November 1, 1991 revision to 2L1.2 of
the Sentencing Guidelines, which governs the offense here.
In its earlier form, this section prescribed a base offense
level of 8, provided for a 4-level increase "[i]f the
defendant previously was deported after sustaining a
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1. This statute provides in pertinent part as follows:
(a) [A]ny 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 ... [and]
(b) ...
(2) whose deportation was subsequent to a
conviction for commission of an aggravated felony,
... shall be fined under [Title 18], imprisoned not
more than 15 years, or both.
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conviction for a felony," and stated that "an upward
departure may be warranted" where the earlier conviction had
consisted of an aggravated felony. U.S.S.G. 2L1.2 &
comment. (n.3) (Nov. 1990). The revised version provides for
a mandatory 16-level enhancement in all such aggravated
felony cases. U.S.S.G. 2L1.2(b)(2) (Nov. 1991). The
amendment thus "converted the discretionary choice whether to
increase the penalty for [aggravated felons] to a
requirement, by instructing the court to add 16 points to the
calculation of their total offense level." United States v.
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Rodriguez, 26 F.3d 4, 7 (1st Cir. 1994).
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Defendant's argument for a downward departure hinges on
his factual assertion that he reentered the country in August
1991, before this amendment took effect. While not disputing
the amendment's applicability per se, he argues that the
"real crime" sought to be proscribed by 1326 is the act of
reentry. Sent. Tr. at 7. In his view, because he had
already returned to this country by the time the amendment
took effect, applying the full 16-level enhancement to him--
"without advance warning and without an opportunity to
conform his conduct accordingly," Brief at 5--would serve no
deterrent value. He concludes that, inasmuch as deterrence
was one of the purposes underlying the 1991 amendment, see 18
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U.S.C. 3553(a)(2)(B), this circumstance is one that would
justify a downward departure. The district court disagreed,
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holding that it lacked the authority to do so. We review
this determination de novo. See, e.g., United States v.
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Rivera, 994 F.2d 942, 951 (1st Cir. 1993).
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II.
Even accepting defendant's premise regarding the date of
reentry (a matter hardly free of doubt),2 we find his
argument unpersuasive for three reasons. First, it runs
contrary to our recent decision in United States v. Smith, 14
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F.3d 662 (1st Cir. 1994). The INS there had erroneously
advised Smith at the time of deportation that the maximum
penalty for unlawful return was two years of imprisonment
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2. While defendant told the probation office that he had
reentered the country in August 1991, he had earlier
submitted a sworn statement to INS officials indicating that
he had returned in February 1992. At sentencing, defendant
insisted this latter statement was the result of a
misunderstanding (apparently due to his lack of facility with
the English language), and requested the opportunity to
establish, through the testimony of himself and his wife,
that the August 1991 date was the correct one. Without
addressing this request, the court announced a contrary
finding. After first indicating that it lacked the authority
to depart downward, it stated:
I am not moreover persuaded that he did in
fact arrive in August of '91. He did tell I.N.S.
he arrived in February [1992], and given that fact,
I will not depart.
Sent. Tr. at 28. Yet when defendant thereafter renewed his
request to present evidence supporting the August 1991 date,
id. at 32, the court mentioned only its perceived lack of
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discretion to undertake a departure, id. at 35.
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To the extent the court intended to rest its decision in
the alternative on this factual finding, of course, a
separate basis for affirmance would exist. Given the modicum
of ambiguity in the record, however, we think it preferable
to address defendant's legal argument on the merits.
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(rather than fifteen years). Smith argued that, because he
had relied on this notice in deciding to return, he was
entitled to a downward departure. We agreed with the lower
court that this was not the kind of circumstance that would
justify such a departure. A contrary conclusion would have
"countenance[d] Smith's purposeful decision to engage in
felonious conduct," in derogation of the goals of deterrence
and promoting respect for the law. Id. at 666; accord United
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States v. Ullyses-Salazar, ___ F.3d ___, 1994 WL 267956, at
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*3 to *4 (9th Cir. June 20, 1994). So here, defendant is
seeking "the benefit of a downward departure [simply] because
[he] understood the penalty he would face to be relatively
minor." Smith, 14 F.3d at 666.
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As a related matter, defendant overlooks the fact that
the former version of 2L1.2 encouraged upward departures in
cases of aggravated felons. Even under that version,
therefore, defendant could have received a sentence at least
approximating the one imposed here. See United States v.
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Campbell, 967 F.2d 20, 27 (2d Cir. 1992) (relying in part on
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the subsequently enacted 16-level enhancement in order to
find size of such an upward departure reasonable). Cf.
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United States v. Aymelek, 926 F.2d 64, 71 (1st Cir. 1991)
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(upholding upward departure imposed to take account of the
"lag time" between the increased statutory penalties in
1326 and "the corresponding update of the guidelines").
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Most important, defendant's focus on the act of reentry
is misplaced. As we have recently explained, a deported
alien may commit an offense under 1326 on three separate
occasions: when he or she (1) "enters" the country, (2)
"attempts to enter" the country, or (3) "is at any time found
in" the country. See Rodriguez, 26 F.3d at 8; United States
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v. Troncoso, 23 F.3d 612, 615 (1st Cir. 1994). Defendant
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here was indicted for, and pled guilty to, the crime of being
"found in" the country following deportation. This is as
much a "real crime" (to use defendant's parlance) as are the
acts of entry or attempted entry.3 Indeed, 2L1.2 is
entitled "Unlawfully Entering or Remaining in the United
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States." (Emphasis added). Cf. United States v. Whittaker,
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999 F.2d 38, 42-43 (2d Cir. 1993) ( 1326 adequately
"informed [defendant] that, if he remained in this country
following his illegal reentry, he would be subject to
criminal prosecution when he was 'found' here"). Once the
amendment took effect, defendant had the opportunity, and
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3. For this reason, we held in Rodriguez that applying
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2L1.2's 16-level enhancement to an alien who had reentered
the country prior to November 1991 but had been "found"
thereafter entailed no ex post facto violation. 26 F.3d at
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7-8; accord, e.g., United States v. Whittaker, 999 F.2d 38,
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40-42 (2d Cir. 1993); United States v. Gonzales, 988 F.2d 16,
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18 (5th Cir.), cert. denied, 114 S. Ct. 170 (1993). On the
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same rationale, we held in Troncoso that no ex post facto
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difficulties arose from applying the increased penalties in
1326(b)(2) to one who had reentered prior to their enactment
but been found thereafter. 23 F.3d at 615.
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should have had an increased incentive, to "conform his
conduct accordingly" by departing from the country.
For these reasons, we agree with the lower court that
the circumstances here are not of a kind that would warrant a
downward departure. Cf. United States v. Polanco, ___ F.3d
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___, ___ n.3, 1994 WL 361092 (2d Cir. July 12, 1994) (noting
in 2L1.2(b)(2) case, involving defendant who had reentered
the country in 1990 and been discovered in 1992, that "the
Guidelines more than adequately account for the circumstances
underlying the offense conduct here"); United States v. Maul-
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Valverde, 10 F.3d 544, 546-47 (8th Cir. 1993) (invalidating
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downward departure imposed by lower court in 2L1.2(b)(2)
case because of age of aggravated felony, while recognizing
that departure in either direction may be appropriate in
"unusual" case).
Affirmed.
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