                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-24-2002

USA v. DeLos Santos
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4525




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Recommended Citation
"USA v. DeLos Santos" (2002). 2002 Decisions. Paper 606.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/606


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                                                NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                           No:   01-4525


                     UNITED STATES OF AMERICA

                                 v.

                      RAFAEL DE LOS SANTOS,
                       a/k/a GREGORIO URENA

                       Rafael DeLos Santos,

                                                         Appellant


       On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
               (D.C. Criminal No. 01-cr-00160)
District Court Judge: The Honorable Franklin S. VanAntwerpen


         Submitted Under Third Circuit L.A.R. 34.1(a)
                      September 10, 2002

     Before:    SLOVITER, RENDELL, FUENTES, Circuit Judges

               (Opinion Filed: September 24, 2002)



                       OPINION OF THE COURT



FUENTES, Circuit Judge:
     On March 22, 2001, a federal grand jury charged Defendant Rafael De Los Santos
with illegal re-entry by an alien previously deported following conviction for an
aggravated felony, in violation of 8 U.S.C. 1326(a) and (b). On June 14, 2001, De Los
Santos and the Government signed a plea agreement, which noted that the charge carried
a maximum sentence of twenty-years imprisonment. De Los Santos now challenges the
four-year sentence imposed by the District Court under 1326(b)(2) on the grounds that
the District Court only recited the elements of the lesser included offense under 1326(a)
before his plea. Section 1326(a) carries a maximum sentence of two-years. Based on the
current state of Supreme Court precedent, we affirm the sentence imposed by the District
Court.

                               I.
     De Los Santos is a citizen of the Dominican Republic. In 1996, he was convicted
and sentenced in the state court system of New York for criminal sale of a controlled
substance. After he served sixteen months, the Immigration and Naturalization Service
(INS) assumed custody of De Los Santos in order to initiate deportation proceedings. On
March 18, 1997, the INS deported him to the Dominican Republic. De Los Santos re-
entered the United States later that year.
     On March 22, 2001, a federal grand jury indicted De Los Santos for various
offenses. The dispute in this case centers on Count One of the indictment, which charged
De Los Santos with illegal re-entry in violation of 8 U.S.C. 1326(a) and (b).
Specifically, Count One charged him with being a citizen of the Dominican Republic who
had previously been deported from the United States subsequent to a conviction for an
aggravated felony, and with re-entering the United States without first seeking permission
from the United States Attorney General. De Los Santos subsequently signed a plea
agreement in which he acknowledged that the offense charged in Count One carried a
maximum penalty of twenty years imprisonment.
     On June 18, 2001, De Los Santos entered his plea of guilty to Count One before
the District Court. At the hearing, the District Court noted that Count One carried a
maximum penalty of twenty years imprisonment. In addition, counsel for the
Government set forth the factual basis for the guilty plea, including the drug felony
conviction in New York, and De Los Santos acknowledged the accuracy of the facts
recited by the Government.
     The District Court informed De Los Santos of the elements in the Count One
offense as follows: (1) the defendant is not a citizen of the United States; (2) the
defendant was lawfully deported from the United States; and (3) the defendant re-entered
the United States without the consent of the Immigration and Naturalization Service. The
District Court did not list an element referencing an aggravated felony. The District
Court sentenced De Los Santos to four years imprisonment pursuant to the twenty-year
maximum set forth in 1326(b)(2), rather than the two-year maximum set forth in
1326(a).

                              II.
     This appeal stems from a judgment of conviction and sentence. We exercise
jurisdiction over an appeal from a final decision pursuant to 28 U.S.C. 1291. We also
exercise jurisdiction to review a final sentence pursuant to 18 U.S.C. 3742.
     De Los Santos claims that the District Court erred in sentencing him to four years
imprisonment because he pleaded guilty to 1326(a), not 1326(b)(2). De Los Santos
argues that the elements to which he pleaded guilty did not include deportation following
conviction for an aggravated felony, as required under 1326(b)(2), and that, as a result,
the maximum authorized sentence was two years pursuant to 1326(a). He asserts that
the District Court committed plain error by sentencing him to four years imprisonment.
     The United States Supreme Court has previously ruled that the provision in
1326(b)(2), stating "deportation was subsequent to a conviction for commission of an
aggravated felony," simply authorizes an enhanced penalty and is not an element of a
separate crime. See Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998).
More recently, in Apprendi v. New Jersey, 530 U.S. 466, 489 (2000), the Supreme Court
indicated that Almendarez-Torres may have been incorrectly decided. However, given
that resolution of that issue was not necessary to reach a decision in Apprendi, the Court
specifically declined to overrule Almendarez-Torres. See id. at 489-90. As the law
stands today, "[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." Id. at 490.
     Absent specific language in an opinion issued by the United States Supreme Court
overturning one of its prior decisions, we lack the power to interpret one of its cases as
having been overturned, regardless of whether or not the United States Supreme Court
has indicated that a prior case may have been decided incorrectly. See Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (stating that "[i]f a
precedent of this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative of overruling its own
decisions.") Based on this reasoning, we have previously declined to engage in
speculation about the future of Almendarez-Torres. See United States v. Weaver, 267
F.3d 231, 250-51 (3d Cir. 2001). Almendarez-Torres continues to stand as controlling
authority today. Therefore, we find that the District Court committed no error in
sentencing De Los Santos to four years imprisonment.
                              III.
     Accordingly, for the reasons stated above, we affirm the sentence imposed by the
District Court.

_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.


                                           /s/ Julio M. Fuentes
                                        Circuit Judge
