USCA1 Opinion
June 9, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2273
UNITED STATES,
Appellee,
v.
RAFAEL PEREZ-SANTANA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Edward P. Manning, Jr., on brief for appellant.
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Sheldon Whitehouse, United States Attorney, Margaret E.
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Curran and Charles A Tamuleviz, Assistant United States
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Attorneys, on brief for appellee.
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Per Curiam. Appellant, Rafael Perez-Santana, pled
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guilty to reentry after deportation following an aggravated
felony conviction, in violation of 8 U.S.C. 1326(b)(2).
The district court sentenced him under the sentencing
guidelines to 52 months in prison. Appellant challenges his
sentence on the ground that the district court was estopped
from imposing a prison sentence in excess of two years
because the government advised him in Spanish at the time of
his deportation that the maximum prison sentence for illegal
reentry was two years. We affirm the sentence.
Background
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Appellant, a citizen of the Dominican Republic, was
convicted on December 4, 1991, in Rhode Island state court of
two felony counts related to the delivery of cocaine. On
March 6, 1992, following a hearing before the Immigration and
Naturalization Service ("INS"), appellant was ordered
deported from the United States.
It is undisputed that at the time of appellant's
deportation hearing, the INS provided him with Form I-294.
That form warned appellant, in English and Spanish, that
reentry within five years without permission would constitute
a felony, punishable by imprisonment of not more that two
years. The form, dated March 6, 1992, was signed by
appellant to indicate receipt. At the same time, appellant
also received and signed an "Attachment to Form I-294" which
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notified appellant that illegal entry by a person deported
following conviction of an aggravated felony would be
punishable by imprisonment for "not more than 15 years,"
pursuant to 8 U.S.C. 1326(b)(2). The "Attachment to Form
I-294" was not translated into Spanish. Appellant claims
that he cannot read English.
On January 13, 1993, appellant was arrested in
Providence, Rhode Island, and eventually indicted by a
Federal Grand Jury for illegal reentry by an alien deported
following conviction of an aggravated felony. Under the
terms of the plea agreement, appellant reserved his right to
challenge the imposition of a sentence in excess of the two-
year maximum of which he was advised by the Spanish
translation of Form I-294. Prior to sentencing, appellant
objected to the PSR to the extent that its recommendations
would result in a prison sentence exceeding two years.
Appellant argued that the district court was estopped from
imposing a lengthier sentence by the government's conduct in
misrepresenting at the time of his deportation that reentry
into the United States would be punished by imprisonment of
not more than two years.
The district court, adopting the PSR's findings of fact
and application of the guidelines, arrived at an imprisonment
range of 46 to 57 months. The court sentenced appellant to
52 months in prison. In rejecting appellant's estoppel
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argument, the court reasoned as follows. First, it had "a
great deal of difficulty in accepting" appellant's contention
that he had relied upon his understanding that a two-year
maximum sentence applied in deciding to illegally reenter the
United States. Second, the court found that the failure to
include a Spanish translation of the enhanced penalty
provision did not amount to the "affirmative misconduct"
required by the estoppel doctrine. Finally, the court
refused to apply the equitable estoppel doctrine to one who
had "unclean hands," because he had knowingly violated the
law by reentering the United States.
Discussion
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This appeal of the district court's sentence is based
entirely on the estoppel argument. In support thereof,
appellant argues that the elements of estoppel, as set forth
by this court in Akbarin v. Immigration and Naturalization
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Service, 669 F.2d 839 (1st Cir. 1982), are met by this case.
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In Akbarin, this court addressed the application of the
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doctrine of equitable estoppel against the government in
immigration cases. The court held that in determining whether
the government is estopped, the focus should be on the
following two questions. First, was the Government's action
error? If so, then, did the government misconduct "induce
the petitioner to act in a way that he would not otherwise
have ?" Id. at 843. In this case, the district court
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rejected appellant's contention that "if Mr. Santana had
known that the maximum penalty would be four years as opposed
to one to two years, that he wouldn't have entered the United
States." Therefore, even assuming that the government's
failure to translate the "Attachment to Form I-294"
constituted government misconduct, the district court has
found that the reliance element of the equitable estoppel
doctrine was not met. Giving "due regard to the opportunity
of the district court to judge the credibility of the
witnesses," 18 U.S.C. 3742(e), we conclude that the
district court's failure to find reliance was not "clearly
erroneous." Id.
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Moreover, in Akbarin, we held that "[p]etitioner's
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unclean hands . . . may preclude him from asserting estoppel
against the Government." 669 F.2d at 844. Here, appellant
admits that he knowingly committed a felony by reentering the
United States. In United States v. Perez-Torres, 15 F.3d 403
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(5th Cir. 1994), the Fifth Circuit, on facts almost identical
to the facts of this case, refused to apply the doctrine of
equitable estoppel. The court held that "the law should not,
and does not, regard the willful and knowing commission of a
felony as 'reasonable' reliance for these purposes." Citing
Precision Instrument Mfg. Co. v. Automotive M.M. Co., 324
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U.S. 806 (1945), the Fifth Circuit reasoned as follows:
Here the matter as to which Perez seeks relief is
his reentry into the United States, and as to this
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he is tainted with extreme bad faith, for he knew
such conduct was a felony and nevertheless
willfully and purposefully engaged in it; hence, to
avoid injury to the public, the doors of equity are
closed to Perez, however improper the INS's earlier
advice to him concerning the maximum sentence for
that felony.
United States v. Perez-Torres, 15 F.3d at 407.
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This court applied similar reasoning in United States v.
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Smith, 14 F.3d 662 (1st Cir. 1994). There, appellant also
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challenged his sentence on the ground that the INS
erroneously informed him that the maximum sentence he could
receive for reentering the United States illegally was two
years. In holding that petitioner's alleged reliance on the
government's misstatement of the maximum penalty was not a
mitigating circumstance that warranted downward departure
under the sentencing guidelines, we focused on appellant's
knowing commission of a felony:
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
downward departure, because Smith understood the
penalty he would face to be relatively minor.
Id. at 666.
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The cases that appellant relies upon, Johnson v.
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Williford, 682 F.2d 868 (9th Cir. 1982) and Corniel-Rodriguez
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v. I.N.S., 532 F.2d 301 (2d Cir. 1976), are inapposite. In
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those cases, the parties asserting equitable estoppel had
indisputably relied upon the government's misconduct.
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Moreover, in those cases appellants did not knowingly break
the law. Therefore, the "unclean hands" bar to the
application of equitable estoppel did not come into play.
The sentence imposed by the district court is summarily
affirmed pursuant to Loc. R. 27.1.
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