                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2004

USA v. Lennon
Precedential or Non-Precedential: Precedential

Docket No. 02-4207




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                        PRECEDENTIAL             Deputy United States Attorney for Policy
                                                 and Appeals
   UNITED STATES COURT OF                        ROBERT A. ZAUZMER, Esq.
APPEALS FOR THE THIRD CIRCUIT                    Assistant United States Attorney, Senior
                                                 Appellate Counsel
                                                 LINWOOD C. WRIGHT, JR., Esq.
              No. 02-4207                        (Argued)
                                                 Assistant United States Attorney
                                                 Office of the United States Attorney
  UNITED STATES OF AMERICA                       615 Chestnut Street
                                                 Suite 1250
                   v.                            Philadelphia, PA 19106-4476

CHRISTINE ANNEMARIE LENNON,                            Counsel for Appellee

             Christine A. Lennon,                STEPHEN A. MORLEY, Esq. (Argued)
             Appellant                           Morley, Surin & Griffin
                                                 325 Chestnut Street
                                                 Suite 1305-P
                                                 Philadelphia, PA 19106
  On Appeal from the United States
District Court for the Eastern District of             Counsel for Appellant
             Pennsylvania
     (Dist. Ct. No. 01-cr-00494-1)
 District Judge: Honorable Ronald L.
               Buckwalter                                       OPINION



       Argued: March 24, 2004                    CHERTOFF, Circuit Judge.
                                                        Christine Lennon appeals a final
     Before: ROTH, AMBRO and                     judgment of conviction and sentence
     CHERTOFF, Circuit Judges.                   entered by the District Court. Lennon
                                                 pled guilty to being “found in the United
         (Filed: June16, 2004 )                  States, having knowingly and unlawfully
                                                 re-entered the United States” in violation
                                                 of 8 U.S.C. §§ 1326(a) and (b)(2).
PATRICK L. MEEHAN, Esq.                          Lennon claims that the District Court’s
United States Attorney                           sentencing analysis violated her rights
LAURIE MAGID, Esq.                               under the Constitution’s Ex Post Facto

                                             1
clause. In part, this analysis turns on           different Trooper’s vehicle with her car.2
defining the nature of the offense to which       Lennon was sentenced to four years
Lennon pled. We have jurisdiction under           imprisonment, but was paroled to INS
28 U.S.C. § 1291 and, for the reasons that        custody for deportation due to her criminal
follow, we will affirm.                           activity.
                    I.                                   Lennon was deported to her native
                                                  Jamaica on September 24, 1993. Eleven
       Lennon entered the United States in
                                                  months after being deported, Lennon re-
1981 at the age of 17 as a lawful
                                                  entered the United States under the
permanent resident. She is a single mother
                                                  pseudonym Diedra Barlow. She neither
of three children, all American citizens by
                                                  applied for admission to the United States
birth. She has maintained a close
                                                  nor obtained the express consent of the
relationship with her children and has
                                                  Attorney General before she re-entered.
provided for them despite receiving no
                                                  See 8 U.S.C. § 1326(a).
support from their three biological
fathers.1 She also suffers from Graves’                  Soon after her illegal re-entry,
disease, an autoimmune disorder.                  Lennon resumed her violations of the law.
                                                  She was convicted in 1996 of possession
       Lennon’s means of providing for
                                                  with intent to distribute marijuana.3 That
herself and her children have not always
                                                  offense resulted in a sentence of sixty days
been legal. In 1983, at age nineteen and
                                                  imprisonment followed by three years
only two years after assuming legal
                                                  probation. Lennon also pled guilty to
permanent residency in the United States,
                                                  shoplifting three times in 1998, receiving
Lennon committed a shoplifting offense.
                                                  a probation sentence each of the last two
She was convicted in 1988 and received a
                                                  times. Additional shoplifting charges
$300 fine. That year, Lennon was also
charged with and convicted of violating
the Pennsylvania Controlled Substance                    2
                                                          In the arrest leading to the present
Act, when drugs and drug paraphernalia            charges, Lennon once again struck the
were found in her apartment. She served           vehicle of her arresting officers. She was
28 months of her 27 to 53 month sentence.         apprehended by the Immigration and
In 1992, she was convicted of aggravated          Naturalization Service (INS) while in her
assault on a New Jersey State Trooper.            vehicle. Upon seeing the approaching
Lennon led the Troopers on a high-speed           agents, Lennon shifted her car into reverse
chase that reached speeds over 100 miles          and struck the INS vehicle that was parked
per hour and ended when she struck a              behind her and intended to block her
                                                  escape.
       1                                                 3
         The father of Lennon’s second                   Lennon pled nolo contendere in
child, Ashley Esplante, was murdered in           Los Angeles, California, Superior Court.
Philadelphia in 1993.

                                              2
remain pending against her in Cherry Hill,         apprehension in 2001. That being so, the
New Jersey; Upper Merion Township,                 Government advocated including as
Pennsylvania; and Springfield Township,            criminal history enhancements two of
Pennsylvania.4 Grand larceny and grand             Lennon's crimes that “occurred” for
theft charges remain pending against her           criminal history purposes fewer than ten
in, respectively, Orange County and Palm           years before her 1994 re-entry date but
Beach County, Florida.                             more than ten years before the date in
                                                   2001 on which she was “found,” in the
        Lennon eventually came to the
                                                   sense of being actually apprehended.
attention of INS officials as a result of an
anonymous tip and was apprehended on                       Lennon also argued that, whatever
July 7, 2001. She was indicted for, and            crime she was charged with, the 1993
pled guilty to, being “found in the United         Sentencing Guidelines should apply
States, having knowingly and unlawfully            because her crime was completed upon her
re-entered the United States” in violation         illegal re-entry in 1994. The Government
of 8 U.S.C. §§ 1326(a) and (b)(2)                  disagreed, pointing out that Section 1326
(hereinafter “Section 1326"). J.A. at 32.          enumerates being “found in” as a criminal
Section 1326(a) contains three separate            offense that is distinct from unlawful re-
offenses, phrased in the disjunctive: (1)          entry. The Government argued that
illegal re-entry, (2) attempted illegal re-        because her “found in” violation was
entry, and (3) being found illegally in the        continuing, it was “committed” at the time
United States. See United States v.                she re-entered through the date when she
DiSantillo, 615 F.2d 128, 134 (3d Cir.             came to the attention of INS officials in
1980).                                             2001. Under that theory, the 1993 version
                                                   of the Guidelines was inapplicable.
       At sentencing, Lennon contended
that the indictment ambiguously charged                   In the alternative, Lennon argued
her both with illegal re-entry, and with           that the District Court should use the
being illegally “found in” the United              November 2000 version of the
States. The Government asserted that that          Guidelines—those in effect on the date
Lennon was charged only with the “found            she was apprehended by INS
in” charge of Section 1326(a) and                  officials—rather than the November 2001
contended that such a violation is a               version of the Guidelines—those in effect
continuing one, starting on the date (or           on the date she was sentenced. The
approximate date) of her actual re-entry in        Government contended that use of the
1994 and running through her                       November 2001 Guidelines was
                                                   appropriate and gave rise to no Ex Post
                                                   Facto issue.
       4
         Lennon was also charged with                    In imposing sentence, the District
shoplifting in 1989 but the charges were           Court first held that Lennon’s crime was
dismissed.

                                               3
committed on the date she was                      57 months imprisonment. Lennon timely
“found”—thus falling under the “found              appealed and maintains that the District
in” prong of Section 1326. The District            Court violated her rights under the
Court looked to the November 2001                  Constitution’s Ex Post Facto clause.
Guidelines, Section 2L1.2, to find
                                                          We exercise plenary review over
Lennon's base offense level to be 8. The
                                                   the District Court’s interpretation of the
District Court then applied the 16 point
                                                   Sentencing Guidelines and constitutional
enhancement              in     Section
                                                   questions. See United States v. Cicirello,
2L1.2(b)(1)(A)—based either on Lennon's
                                                   301 F.3d 135, 137 (3d Cir. 2002); United
aggravated assault convictio n
                                                   States v. Spinello, 265 F.3d 150, 153 (3d
(2L1.2(b)(1)(A)(ii)) or her possession with
                                                   Cir. 2001); United States v. Figueroa, 105
intent to dis tribute conv iction
                                                   F.3d 874, 875-76 (3d Cir. 1997). We
(2L1.2(b)(1)(A)(i)). Next, the District
                                                   review the District Court’s factual
Court reduced her offense level by three
                                                   findings for clear error, see Cicirello, 301
points for acceptance of responsibility
                                                   F.3d at 137, and the District Court’s
under Section 3E1.1 for a total offense
                                                   application of those facts to the Guidelines
level of 21.
                                                   for an abuse of discretion. See Buford v.
       Finally, the District Court looked to       United States, 532 U.S. 59, 62-66 (2001);
Lennon's extensive criminal history in             United States v. Zats, 298 F.3d 182, 185
order to assign her a criminal history             (3d Cir. 2002). In this context, we
score. The District Court did consider             consider each of Lennon’s claims in turn.
under Section 4A1.2(e) those of Lennon’s
                                                                        II.
offenses that occurred more than ten years
before her 2001 “found” date—implicitly                    The Ex Post Facto clause provides:
holding that “found in” violations are             “No Bill of Attainder or ex post facto Law
continuing crimes—and assigned her four            shall be passed.” U.S. CONST . art. I, § 9,
criminal history points for those offenses.        cl. 3; see also U.S. CONST . art. I, § 10, cl.
The District Court assigned an additional          1. A law does not run afoul of the Ex Post
8 points under Section 4A1.2(e) for those          Facto clause unless it retroactively “alters
of Lennon’s crimes that occurred within            the definition of criminal conduct or
ten years before her “found” date. The             increases the penalty by which a crime is
District Court designated a total criminal         punishable.” Cal. Dep’t of Corr. v.
history category of V. The District Court          Morales, 514 U.S. 499, 506 n.3 (1995);
determined, however, that this criminal            see also, e.g., Lynce v. Mathis, 519 U.S.
history was overstated, and reduced it to a        433, 440-41 (1997) (citing Calder v. Bull,
category IV, making her sentencing range           3 U.S. (Dall.) 386, 390 (1798)); United
57-71 months. See U.S. SENTENCING                  States v. Brady, 88 F.3d 225, 227 (3d Cir.
GUIDELINES MANUAL § 4A1.3 (2001).                  1996) (citing Cummings v. Missouri, 71
The District Court imposed a sentence of           U.S. (4 Wall.) 227, 326-26 (1866)). The


                                               4
Sentencing Guidelines—along with all              2001 Guidelines.5
statutes that impose or dictate
                                                         The key to this argument is
sentence—are, of course, subject to the Ex
                                                  Lennon’s claim that the Section 1326
Post Facto clause. See Miller v. Florida,
                                                  violation to which she pled guilty was
482 U.S. 423, 429-35 (1987); United
                                                  committed in 1994, when she illegally re-
States v. Kopp, 951 F.2d 521, 526 (3d Cir.
                                                  entered the United States and when the
1991); see also U.S. SENTEN CING
                                                  1993 Guidelines were in force. First,
GUIDELINES MANUAL § 1B1.11 (2003).
                                                  Lennon asserts that the indictment is
But a District Court is entitled to employ
the Guidelines in place at the time of
sentencing unless doing so would expose                   5
                                                              Lennon argues that none of the
the defendant to harsher penalties than           enhancements in the 1994 Guidelines
were in effect at the time the crime was          would have applied to her. She contends
committed. See United States v. Corrado,          that her New Jersey aggravated assault
53 F.3d 620, 622-23 (3d Cir. 1995). In            conviction would not have met the
order to establish, therefore, that the Ex        definition of “aggravated felony” under
Post Facto clause requires the application        the 1993 Guidelines because it was not “a
of an earlier version of the Sentencing           crime of violence . . . for which the term
Guidelines, a defendant must show that            of imprisonment imposed . . . is at least 5
the crime was committed at a time that the        years.” U.S. SENTENCING GUIDELINES §
earlier Guidelines version was in force and       2L1.2, cmt. n.7 (1993); 8 U.S.C. §
that the earlier version is more favorable        1101(a)(43)(F) (1995). She concludes
to him or her. See United States v.               that, because none of the other
Audinot, 901 F.2d 1201, 1202 (3d Cir.             enhancements would have applied to her,
1990).                                            her total offense level would have equaled
                    A.                            the base offense level of 8. Neither party
                                                  addressed whether Lennon’s 1988
       Lennon first contends that the             Pennsylvania controlled substance
version of the Guidelines in force on the         conviction would have qualified as an
date of her 1994 re-entry—the 1993                aggravated felony under subsection
Guidelines—should have been used to               1101(a)(43)(B) as “illicit trafficking in a
calculate her sentence. Those guidelines          controlled substance,” making the 1993
would have been more favorable to her             G u i d e l i n e s’ a g g r a v a te d f e l o ny
because, she argues, she would have               enhancement nonetheless applicable to
faced—before a reduction for acceptance           her. Because it does not change our
of responsibility—a total offense level of        analysis, we assume that her 1988
8, rather than the level 24 the District          Pennsylvania controlled substance
Court calculated under the November               conviction would not have qualified as an
                                                  “aggravated felony” within the meaning of
                                                  the 1993 Guidelines.

                                              5
ambiguously worded to charge both the               we need to discuss at some length.
“re-entry” prong and the “found in” prong
                                                           In DiSantillo, the defendant had
of Section 1326.6 She invokes the “rule of
                                                    been arrested and deported in 1962. Id. at
lenity,” see United States v. Lainer, 520
                                                    130. He re-entered the United States in
U.S. 259, 266 (1997), and argues that the
                                                    1970, under his own name and on an
crime with which she is charged should be
                                                    immigrant visa issued by the American
deemed to be illegal re-entry in 1994
                                                    Consul General in Italy. But because of
because the 1993 Guidelines are more
                                                    his earlier deportation, that visa was
lenient than the 2001 Guidelines under
                                                    improper and DiSantillo’s re-entry was in
which she was sentenced.
                                                    violation of Section 1326. Id.
        This is not a reasonable application
                                                            DiSantillo was not interviewed by
of the rule of lenity. Notwithstanding the
                                                    INS agents until 1976 and not
reference to Lennon’s “re-entry,” the
                                                    indicted—under Section 1326's “found in”
indictment clearly charges her under the
                                                    prong—until 1979. Id. He argued that the
“found in” prong of Section 1326. See
                                                    five-year statute of limitations for his
United States v. Whittaker, 999 F.2d 38,
                                                    “found in” violation began to run on his
40-41 (2d Cir. 1993) (concluding that
                                                    re-entry into the United States and expired
alien’s crime occurred for sentencing
                                                    in 1975. Id. at 132. The Government
purposes on alien’s “found” date even
                                                    argued that DiSantillo’s offense was a
though the indictment charged all three
                                                    continuing one, “effectively tolling the
prongs of Section 1326).
                                                    statute of limitations for as long as the
        Next, though somewhat obliquely,            alien remain[ed] illegally in the country.”
Lennon argues that even if her violation            Id. at 132.
was being “found in” the United States
                                                            We looked to the plain language of
illegally, that offense occurred as a matter
                                                    Section 1326 and held that the statute of
of law at the time she illegally crossed into
                                                    limitations for a “found in” violation
the United States in 1994 through a
                                                    begins on the date the alien comes to the
recognized port of entry. This argument is
                                                    attention of immigration authorities. Id. at
on somewhat stronger footing, flowing
from this Court’s decision in United States
v. DiSantillo, 615 F.2d at 134-36,7 which           the statute of limitations has run on her
                                                    “found in” violation. See DiSantillo, 615
       6
        Lennon does not assert, however,            F.2d at 134-36.              But Lennon
that the ambiguity in the indictment                unquestionably waived any argument she
renders it duplicitous.                             may have had based on the statute of
                                                    limitations by failing to raise that defense
       7
       We note that Lennon’s argument               before the District Court. Accordingly,
could be construed as a means of                    we voice no opinion with respect to that
contending, by way of the back door, that           defense.

                                                6
135. Central to our holding was the fact             with “knowledge” of an alien’s presence
that DiSantillo had passed through a                 in the United States—does not extend to a
recognized port of entry pursuant to an              case such as this, where Lennon
otherwise valid American-issued visa                 affirmatively concealed her identity. To
under his own name. That being so, his               hold otherwise would actually favor the
re-entry was not surreptitious, and                  illegal entrants who affirmatively conceal
immigration authorities had sufficient               their identities over those who honestly
notice of that re-entry to start the running         use their own names.8
of the five-year statute of limitations for
his “found in” offense. We contrasted, in
a dictum, DiSantillo’s case with the                        8
                                                               The Government urges that the
example of an alien who enters the United            crime of being “found in” the United
States surreptitiously. Id. at 134-36.               States is a continuing offense, just in the
Under those circumstances, we reasoned,              same way that a conspiracy is. See, e.g.,
Congress did not intend the statute of               United States v. Jake, 281 F.3d 123, 129
limitations for “found in” violations to             n.6 (3d Cir. 2002). The argument has
begin running against the Government on              force; the passage of time does not give
the date of the alien’s illegal re-entry into        rise to a de facto amnesty that legalizes an
the United States. Rather, as in the case of         unlawful alien’s presence.         But the
DiSantillo’s non-surreptitious re-entry, the         question of whether “found in” violations
statute of limitations only begins to run            are continuing crimes was addressed, to a
once the Government is on notice of the              limited extent, in our holding in
alien’s illegal presence in the United               DiSantillo. 615 F.2d at 134-36. In the
States.                                              context of that case, we held that the
        In short, DiSantillo held that illegal       “found in” prong did not codify a
re-entry begins, for statute of limitations          continuing crime. Id. Since that time,
purposes, when the alien presents himself            numerous other courts have taken
non-surreptitiously (i.e., using his own             positions that are, to varying degrees, to
name) at an open point of entry even                 the contrary. See United States v. Ruiz-
though immigration personnel failed to               Gea, 340 F.3d 1181, 1189 (10th Cir.
react. That makes some sense because the             2003); United States v. Mendez-Cruz, 329
Government has sufficient notice of the              F.3d 885, 889 (D.C. Cir. 2003); United
alien’s presence in the United States to             States v. Lopez-Flores, 275 F.3d 661, 663
bear the burden of the running of the                (7th Cir. 2001); United States v. Mendez-
statute of limitations against it. Id. Here,         Casillas, 272 F.3d 1199, 1203-05 (9th Cir.
however, Lennon admits that she used an              2001); United States v. Ruelas-Arreguin,
alias when she crossed into the United               219 F.3d 1056, 1061 (9th Cir. 2000);
States. The logic of DiSantillo—that                 United States v. Reyes-Nava, 169 F.3d
immigration authorities should be imputed            278, 279-80 (5th Cir. 1999)); United
                                                     States v. Diaz-Diaz, 135 F.3d 572, 575

                                                 7
       This reading of DiSantillo is              any error by the District Court in this
consistent with the decisions of other            respect was harmless.9 Lennon concedes
courts, holding that the offense of being         that, excluding her pre-1991 crimes, her
“found in” the United States illegally is         criminal history score was a Level IV.
“committed” when the alien comes to the           The District Court here ultimately
affirmative attention of INS officials. See       sentenced her based on a criminal history
United States v. Rodriguez, 26 F.3d 4, 8          of Level IV, arriving at the same
(1st Cir. 1994); United States v. Gonzales,       sentencing range as would have resulted
988 F.2d 16, 18 (5th Cir. 1993);                  had the District Court excluded Lennon’s
Whittaker, 999 F.2d at 40-42. Indeed, in          pre-1991 crimes.10 Thus, any error by the
Whittaker, the Second Circuit interpreted
Section 1326 as we do here: Where an                     9
alien unlawfully enters with a fictitious                  The Government argues that there
name, even through a recognized port of           is no error because Lennon’s offense was
entry, he is “found in” the United States         a continuing one, lasting from 1994
when actually discovered. Whittaker, 999          through 2001.        This is arguably
F.2d at 42. Accordingly, Lennon’s Section         inconsistent with DiSantillo, but we need
1326 violation was “committed” when she           not reach the question.
was apprehended by INS officials in 2001.                10
                                                             At oral argument, Lennon’s
       Finally, Lennon observes that a            counsel suggested that the District Court’s
logical implication of a finding that her         use of the older crimes might be error even
crime was “committed” in 2001 is that her         though the District Court applied the
pre-1991 crimes should not have been              lower criminal history level. Lennon’s
used as sentencing factors, since they            counsel speculated that the District Court
“occurred” for sentencing purposes before         might have been inclined to reduce the
the Guidelines’ ten year look-back period         criminal history category irrespective of
as measured from her “found” date. But            whether that history reflected her pre-1991
                                                  crimes. All things being equal, the
                                                  argument runs, if the District Court had
(8th Cir. 1998); United States v.                 not included her pre-1991 crimes but still
Castrillon-Gonzales, 77 F.3d 403, 406             found her criminal history to be
(11th Cir. 1996); see also United States v.       overstated, her sentencing range—and
Almendarez, 1 Fed. Appx. 234, (4th Cir.           presumably her sentence—would have
2001) (unpublished per curiam). But see           been that much lower. Apart from being
United States v. Rivera-Ventura, 72 F.3d          pure speculation, Lennon’s counsel’s
277, 280-82 (2d Cir. 1995). Perhaps this          argument was not advanced in her briefs.
should cause a re-examination of our              For the same reason that we will not
holding in DiSantillo. But we need not            consider an argument minted at the reply
confront the continued viability of               brief stage, we will not consider an
DiSantillo in this case.                          argument made by counsel for the first

                                              8
District Court in initially considering                  Aggravated felonies that
Lennon’s pre-1991 crimes for criminal                    trigger the adjustment from
history purposes was harmless. See                       subsection (b)(1)(A) vary
United States v. Knight, 266 F.3d 203,                   widely. If subsection
208 (3d Cir. 2001) (noting that a                        (b)(1)(A) applies, and (A)
sentencing error need not be remanded if                 the defendant has
“the record shows that the sentence was                  previously been convicted
unaffected by the error.”); United States v.             of only one felony offense;
Thayer, 201 F.3d 214, 229 (3d Cir. 1999).                (B) such offense was not a
                                                         crime of violence or
                    B.
                                                         firearms offense; and (C)
       The only remaining question, then,                the term of imprisonment
is whether the District Court should have                imposed for such offense
used the November 2000, rather than the                  did not exceed one year, a
November 2001, version of the                            downward departure may be
Guidelines.                                              warranted based on the
                                                         seriousness of the
       Lennon argues that the November
                                                         aggravated felony.
2000 version of the Guidelines was more
favorable to her because the November
2001 Guidelines eliminated the downward
                                                   U.S. SENTENCING GUIDELINES MANUAL §
departure provision under Section 2L1.1.
                                                   2L1.2 cmt. 5 (November 2000). Lennon
Compare U.S. SENTENCING GUIDELINES
                                                   arguably fails each of the Comment’s
MANUAL § 2L1.2 & cmt. 5 (November
                                                   three conditions. Contrary to condition
2000) with U.S. SENTENCING GUIDELINES
                                                   (A), she had been convicted of two
MANUAL § 2L1.2 (November 2001).
                                                   felonies—aggravated assault in New
Because the District Court used the
                                                   Jersey and violation of the Pennsylvania
November 2001 Guidelines, she was
                                                   Controlled Substance Act. Contrary to
denied the opportunity for that additional
                                                   condition (B), her aggravated assault
departure.
                                                   offense probably qualified as an
        As the Government points out,              “aggravated felony” as defined under the
Lennon’s criminal record would have                November 2000 Guidelines. 11         And
prevented her from being considered for a          contrary to condition (C), her New Jersey
downward departure under the November              aggravated assault conviction carried a
2000 Guidelines. Section 2L1.2, comment            sentence of longer than one year.
5 of the November 2000 Guidelines states:

                                                         11
                                                             See U.S. S EN TEN CIN G
time at oral argument. See Nagle v.                GUIDELINES MANUAL § 4B1.2 cmt. n.1
Alspach, 8 F.3d 141, 144 (3d Cir. 1993) .          (November 2000).

                                               9
       Since the downward departure
provision was inapplicable to her, the
November 2000 version of the Guidelines
was no more favorable to Lennon than
was the November 2001 version. That
being so, the Ex Post Facto clause did not
prevent her from being sentenced under
the November 2001 Guidelines—the
Guidelines in force at the time of her
sentencing—and the District Court did not
err by doing so.
                   III.
       For the foregoing reasons, we will
affirm the judgment of the District Court.




                                             10
