USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1722
UNITED STATES OF AMERICA,
Appellee,
v.
TYRONE SMITH,
a/k/a PAUL GLEN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella, Selya and Stahl,
Circuit Judges.
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Annemarie Hassett, Federal Defender Office, for appellant.
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Robert E. Richardson, Assistant United States Attorney, with
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whom A. John Pappalardo, United States Attorney, was on brief for
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appellee.
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January 28, 1994
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TORRUELLA, Circuit Judge. Defendant-appellant Tyrone
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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
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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)
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(quoting United States v. Mendoza-L pez, 481 U.S. 828, 837-39 &
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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
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meaningful review of the administrative proceeding.'" Vieira-
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Candelario, 6 F.3d at 15 (quoting Mendoza-L pez, 481 U.S. at 837-
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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
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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
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did, in fact, file a notice of appeal in which he challenged the
immigration judge's ruling. Id. The issue was never reached,
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however, because the defendant withdrew his appeal and was
deported shortly after doing so. Id. INS agents subsequently
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found Vieira in Providence, Rhode Island, and charged him with
violating 8 U.S.C. 1326. Id. Vieira moved to quash the
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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
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deportation order, this Court observed:
Here, in contrast to the situation in
Mendoza-L pez, the immigration judge's
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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.
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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
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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
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Cir. 1993); United States v. Rushby, 936 F.2d 41, 42 (1st Cir.
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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
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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
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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
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principle, permit the sentencing court to consider at all."
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United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993).
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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
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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
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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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