                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2003

USA v. Bamfield
Precedential or Non-Precedential: Precedential

Docket 02-3291




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                                 PRECEDENTIAL

                                              Filed May 8, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 02-3291


                UNITED STATES OF AMERICA
                                v.
                 SETON WALTER BAMFIELD,
                             Appellant

     On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
               (D.C. Crim. No. 01-cr-00737)
       District Judge: Honorable Harvey Bartle, III

         Submitted Under Third Circuit LAR 34.1(a)
                     April 25, 2003
   Before: SCIRICA, Chief Judge,* AMBRO and GARTH,
                     Circuit Judges

                      (Filed: May 8, 2003)




* Judge Scirica became Chief Judge on May 4, 2003.
                                   2


                          Elaine DeMasse,
                           Assistant Federal Defender,
                           Senior Appellate Counsel
                          David L. McColgin,
                           Assistant Federal Defender,
                           Supervising Appellate Attorney
                          Maureen Kearney Rowley,
                           Chief Federal Defender
                          Defender Association of Philadelphia
                          Federal Court Division
                          Curtis Center, Independence Square
                           West
                          Suite 540 West
                          Philadelphia, PA 19106
                            Counsel for Appellant
                          Patrick L. Meehan,
                           United States Attorney
                          Robert A. Zauzmer,
                           Assistant United States Attorney,
                           Senior Appellate Counsel
                          Stephen J. Britt,
                           Assistant United States Attorney
                          Office of United States Attorney
                          615 Chestnut Street, Suite 1250
                          Philadelphia, PA 19106-4476
                            Counsel for Appellee


                   OPINION OF THE COURT

GARTH, Circuit Judge:
  This case involves appellant Seton Walter Bamfield’s
challenge to his sentence for conviction of violation of 8
U.S.C. § 1253(a)(1)(C), preventing or hampering departure of
an alien subject to an order of removal.
  Bamfield argues that because his offense of conviction
was not listed in the Statutory Index (Appendix A) of the
United States Sentencing Guidelines Manual,1 the District

1. Unless otherwise indicated, this opinion refers to the edition of the
Sentencing Guidelines Manual effective November 1, 2001.
                                  3


Court was required by United States Sentencing Guideline
(U.S.S.G.) § 2X5.1 to apply the most analogous guideline for
the offense, and that the District Court erred in concluding
that U.S.S.G. § 2L1.2 was the most analogous guideline.
   As we will explain, we hold that U.S.S.G. § 2L1.2 is in
fact directly applicable to convictions for violation of 8
U.S.C. § 1253(a)(1)(C), and that the failure to list this
offense in the Statutory Index constitutes an inadvertent
error on the part of the United States Sentencing
Commission. We will therefore affirm the District Court’s
judgment of sentence on the grounds specified in this
opinion. By this means, we call this error to the attention
of the Sentencing Commission so that it may be corrected.

                                  I.
  Seton Walter Bamfield is a native of Guyana who arrived
in the United States in April 1991. According to the
presentence investigation report (PSR), Bamfield was
arrested in early November 1991 for menacing. Later that
month, he was arrested for robbery. He was convicted of
the robbery and was sentenced to a term of imprisonment
of 18 to 54 months in 1992. He was again convicted in
1994 of attempted robbery, and received a sentence of three
to six years.2
  Following this last conviction, the Immigration and
Naturalization Service (INS) began deportation proceedings
against Bamfield on September 30, 1994. An immigration
judge ordered that Bamfield be deported in May 2000, and
Bamfield’s appeal was denied in October 2000. A final order
of removal was issued on October 29, 2000.
  The INS experienced a relatively long delay in receiving
permission from Guyana for Bamfield’s deportation there.
Eventually, Guyana provided the INS with permission to
deport Bamfield there, but the permission only allowed
deportation on a single day, November 1, 2001.

2. The PSR indicates that Bamfield had also been sentenced to five days
imprisonment for resisting arrest in April 1992 and for ten days
imprisonment for being a criminal in possession of a controlled
substance or dangerous weapon in August 1992.
                                      4


   Accordingly, on October 31, 2001, the INS took Bamfield
from Berks County Prison, where he was being held, to INS
offices in Philadelphia, where he was told by INS officers
that he would be sent back to Guyana the next day.
Bamfield was upset at this news. That evening, while
Bamfield was held in INS’s Philadelphia detention unit, he
kicked and punched the doors and walls.
   In the early morning hours of November 1, 2001, INS
officers sought to remove Bamfield from that facility and
take him to the airport so that he could be placed on a
commercial flight to Guyana. As INS officers sought to take
Bamfield from his holding cell to a van in the facility’s
parking garage to take him to the airport, Bamfield resisted.
At trial, an INS officer testified that Bamfield struggled,
tried to kick and spit, and, indeed, bit an INS officer. App.
52a-54a.3
  An INS officer also testified that once placed in the cage
inside the van, Bamfield kicked the cage and door and
screamed. That officer concluded that it would be too
dangerous to transport Bamfield on a commercial airline
and decided to terminate the deportation and have
Bamfield transported to the York County Prison. App. 54a-
55a.
   Following this incident, Bamfield was indicted on two
counts: (1) that he prevented or hampered his departure
following an order of removal in violation of 8 U.S.C.
§ 1253(a)(1)(C), and (2) that he assaulted federal officers in
violation of 18 U.S.C. § 111(a). A jury convicted Bamfield of
the 8 U.S.C. § 1253(a)(1)(C) charge of preventing or
hampering removal, and acquitted him of the assault
charge.
  On August 16, 2002, the District Court imposed
Bamfield’s sentence. The District Court concluded that
U.S.S.G. § 2L1.2 was the appropriate guideline. Accepting
the recommendations contained in the PSR, the District
Court determined that the offense level was 24, that
Bamfield’s criminal history category was V, and that the

3. In his brief, Bamfield casts the situation in a different light, suggesting
that he only complained and passively resisted.
                                      5


applicable imprisonment range was 92 to 115 months. The
District Court sentenced Bamfield to 92 months
imprisonment, i.e., at the lowest end of the range.4
   Bamfield filed a timely notice of appeal, and this appeal
followed.

                                     II.
  The District Court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. We have jurisdiction over
this appeal from a judgment of conviction and sentence
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “Our
review of the District Court’s interpretation and application
of the Sentencing Guidelines is plenary.” United States v.
Jenkins, 275 F.3d 283, 286 (3d Cir. 2002) (citation
omitted).
   We will affirm the District Court’s application of U.S.S.G.
§ 2L1.2 to Bamfield, albeit through an analysis other than
that employed by the District Court. See, e.g., Carter v.
McGrady, 292 F.3d 152, 154 (3d Cir. 2002).
  Bamfield argues that the offense for which he was
convicted, 8 U.S.C. § 1253(a)(1)(C),5 was not listed in the
Guidelines’ Statutory Index (Appendix A), and so the
District Court should have applied the most analogous
guideline to the offense pursuant to U.S.S.G. § 2X5.1.6
Bamfield argues that the District Court’s selection of
U.S.S.G. § 2L1.2 was not sufficiently analogous, and now

4. Bamfield was also sentenced to three years supervised release and a
$100 assessment.
5. The text of this statute is recited infra.
6. That Guideline, entitled “Other Offenses,” provides:
    If the offense is a felony or Class A misdemeanor for which no
    guideline expressly has been promulgated, apply the most analogous
    offense guideline. If there is not a sufficiently analogous guideline,
    the provisions of 18 U.S.C. § 3553(b) shall control, except that any
    guidelines and policy statements that can be applied meaningfully in
    the absence of a Chapter Two offense guideline shall remain
    applicable.
U.S.S.G. § 2X5.1 (2001).
                                    6


suggests that a more analogous guideline would be
U.S.S.G. § 2A2.4.7
   The Government asserts that 8 U.S.C. § 1252(e), which
was the predecessor statute to 8 U.S.C. § 1253, remains
listed in the Statutory Index, and that U.S.S.G. § 2L1.2 was
the applicable guideline to the predecessor statute.
Accordingly, the Government argues that the District
Court’s resort to the “analogous guideline” procedure in
U.S.S.G. § 2X5.1 was unnecessary because U.S.S.G.
§ 2L1.2 is directly applicable to Bamfield’s offense of
conviction.8
  We are persuaded by the Government’s argument, and
conclude that the fact that the Statutory Index refers to 8
U.S.C. § 1252(e), the old “failure to depart” statute, rather
than 8 U.S.C. § 1253(a), the new “failure to depart” statute,
represents an inadvertent omission by the Sentencing
Commission.
  The new statutory provision governing the offense for
which Bamfield was convicted, 8 U.S.C. § 1253(a)(1)(C), was
enacted as part of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.
104-208, 110 Stat. 3009-546.9 It provides as follows:
     (a) Penalty for failure to depart
       (1) In general
      Any alien against whom a final order of removal is
    outstanding by reason of being a member of any of the

7. Bamfield’s counsel acknowledges that though counsel raised an
objection before the District Court concerning the application of § 2L1.2,
counsel did not propose § 2A2.4 as an analogous guideline; rather,
Bamfield’s counsel advocated sentencing Bamfield to time served. See
Appellant’s Br. at 24-25 n.5. Because we rely on alternative grounds in
affirming the District Court’s sentencing determination, we need not
resolve whether the issue was preserved properly.
8. Bamfield’s counsel did not provide a reply brief that responded to the
Government’s argument.
9. Section 307 of the IIRIRA amended § 243 of the Immigration and
Nationality Act, which had been codified at 8 U.S.C. § 1253.
                              7


    classes described in section 1227(a) of this title, who
    . . .
      (C) connives or conspires, or takes any other action,
    designed to prevent or hamper or with the purpose of
    preventing or hampering the alien’s departure pursuant
    to such . . .
    shall be fined under title 18, or imprisoned not more
    than four years (or 10 years if the alien is a member of
    any of the classes described in paragraph (1)(E), (2),
    (3), or (4) of section 1227(a) of this title), or both.
8 U.S.C. § 1253(a) (2001) (emphasis added).
  The earlier “failure to depart” statute, 8 U.S.C. § 1252(e),
read as follows:
    (e) Penalty for willful failure to depart; suspension of
    sentence
    Any alien against whom a final order of deportation is
    outstanding by reason of being a member of any of the
    classes described in section 1251(a) of this title . . .who
    shall connive or conspire, or take any other action,
    designed to prevent or hamper or with the purpose of
    preventing or hampering his departure pursuant to such
    order of deportation, or who shall willfully fail or refuse
    to present himself for deportation at the time and place
    required by the Attorney General pursuant to such
    order of deportation, shall upon conviction be guilty of
    a felony, and shall be imprisoned not more than four
    years, or shall be imprisoned not more than ten years
    if the alien is a member of any of the classes described
    in paragraph (1)(E), (2), (3), or (4) of section 1251(a) of
    this title . . .
8 U.S.C. § 1252(e) (1994 ed.) (emphasis added).
   As this comparison of the former 8 U.S.C. § 1252(e) and
the current 8 U.S.C. § 1253(a) demonstrates, the new
“failure to depart” offense is substantially similar to the
previous version. The Sentencing Commission, however,
failed to incorporate into the Statutory Index the later
revision and recodification of the “failure to depart” offense
in 8 U.S.C. § 1253(a). We assume that this failure to do so
was inadvertent.
                                   8


   Due to this inadvertent error, the Statutory Index
(Appendix A) to the Sentencing Guidelines manual does not
refer to the new “failure to depart” provision enacted by the
IIRIRA and codified at 8 U.S.C. § 1253. Instead, the
Statutory Index in the Guidelines Manual persists in
referring to the old version of 8 U.S.C. § 1252(e), for which
it identifies U.S.S.G. § 2L1.2 as applicable. See U.S.
Sentencing Guidelines Manual app. A (2001).10 For this
reason, the District Court was correct to apply U.S.S.G.
§ 2L1.2,11 though it did not need to resort to analysis of the
most applicable guideline under U.S.S.G. § 2X5.1.12

                                  III.
  For the foregoing reasons, we will affirm the judgment of
the District Court on the ground that U.S.S.G. § 2L1.2 is
applicable when 8 U.S.C. § 1253(a)(1)(C), preventing or
hampering departure of an alien subject to an order of
removal, is the offense of conviction. We also respectfully
suggest that the Sentencing Commission consider revising
the Statutory Index (Appendix A) to the Sentencing
Guidelines Manual to include reference to 8 U.S.C. § 1253
as soon as possible to avoid any such confusion in the
future.
  To this end, the Clerk of this Court is directed to send a
copy of this opinion to the Chair and Chief Counsel of the
United States Sentencing Commission.

10. This error has persisted in the current edition of the manual, see
U.S. SENTENCING GUIDELINES MANUAL app. A (2002), and indeed has been
present in all post-IIRIRA editions of the manual. See U.S. SENTENCING
GUIDELINES MANUAL app. A (2000); U.S. SENTENCING GUIDELINES MANUAL app.
A (1998); U.S. SENTENCING GUIDELINES MANUAL app. A (1997).
11. We also note that U.S.S.G. § 2L1.2, entitled “Unlawfully Entering or
Remaining in the United States,” seems logically applicable to
convictions for preventing or hampering removal, though we need not
consider whether it is analogous to the offense of conviction.
12. We recognize that the Government did not make this specific
argument to the District Court during the sentencing hearing or in its
sentencing memorandum.
                             9


A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
