
USCA1 Opinion

	




          June 9, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2273                                                UNITED STATES,                                      Appellee,                                          v.                                RAFAEL PEREZ-SANTANA,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Edward P. Manning, Jr., on brief for appellant.               _____________________               Sheldon  Whitehouse, United  States  Attorney,  Margaret  E.               ___________________                             ____________          Curran  and   Charles  A  Tamuleviz,   Assistant  United   States          ______        _____________________          Attorneys, on brief for appellee.                                  __________________                                  __________________                      Per  Curiam.  Appellant, Rafael Perez-Santana, pled                      ___________            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                                      __________                 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                                         -2-            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                                         -3-                                          3            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                                      __________                 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                               _______    _______________________________            Service, 669 F.2d 839 (1st Cir. 1982),  are met by this case.            _______            In  Akbarin,  this court  addressed  the  application of  the                _______            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                    ___                                         -4-                                          4            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.                        ___                 Moreover,  in  Akbarin,  we  held  that  "[p]etitioner's                                _______            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                               _____________    ____________            (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            _______________________________     ____________________            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                                         -5-                                          5                 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.            _____________    ____________                 This court applied similar reasoning in United States v.                                                         _____________            Smith,  14 F.3d 662 (1st  Cir. 1994).   There, appellant also            _____            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.            ___                 The  cases  that  appellant   relies  upon,  Johnson  v.                                                              _______            Williford, 682 F.2d 868 (9th Cir. 1982) and Corniel-Rodriguez            _________                                   _________________            v.  I.N.S., 532 F.2d 301 (2d  Cir. 1976), are inapposite.  In                ______            those  cases, the  parties  asserting equitable  estoppel had            indisputably   relied   upon  the   government's  misconduct.                                         -6-                                          6            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.                                          -7-                                          7
