                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-1995

United States v Eversley
Precedential or Non-Precedential:

Docket 94-7482




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Recommended Citation
"United States v Eversley" (1995). 1995 Decisions. Paper 146.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/146


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         UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                _________________

                  No. 94-7482
               _________________

           UNITED STATES OF AMERICA,
                               Appellee

                       v.

             ANDRE BENSON EVERSLEY,
                               Appellant
     _____________________________________

    On Appeal From the District Court of the
           Virgin Islands (St. Croix)
          (D.C. Crim. No. 94-cr-00016)
      _____________________________________

             Argued: April 20, 1995

Before: BECKER, NYGAARD, and ROTH, Circuit Judges

             (Filed:   May 31, 1995)

                             STEPHEN A. BRUSCH, ESQUIRE
                             (ARGUED)
                             Office of Federal Public
                              Defender
                             P. O. Box 1327
                             Charlotte Amalie, St. Thomas
                             USVI, 00804-1327

                             Attorney for Appellant

                             KIM L. CHISHOLM, ESQUIRE
                             (ARGUED)
                             Office of United States
                              Attorney
                             United States Courthouse
                             5500 Veterans Building
                             Suite 260
                             Charlotte Amalie, St. Thomas
                             USVI, G 00802-6924

                             Attorney for Appellee
                    ___________________________

                       OPINION OF THE COURT
                    ___________________________



BECKER, Circuit Judge.
           The defendant, Andre Benson Eversley, a citizen of

Guyana, having been deported from the United States following the

commission of an aggravated felony, was again found in the United

States and was indicted in the District Court of the Virgin

Islands on charges of illegally entering the country.     Pursuant

to a plea bargain, Eversley was permitted to plead guilty to a

violation of 8 U.S.C.A. § 1326(b)(1) (1993) for entering the

country illegally following the commission of a non-aggravated

felony.1   The court imposed a sentence of fifty months


1
 . Reentry into the country by a deported alien is governed by
§ 1326, which, at the time of Eversley’s conviction, provided:

           § 1326 Reentry of deported alien; criminal penalty for
           reentry of certain deported aliens

                (a)   Subject to subsection (b) of this
           section, any alien who --

                     (1)    has been arrested     and
                deported . . . and thereafter

                     (2) enters . . . or is at any
                time found in the United States . .
                . shall be . . . imprisoned not
                more than 2 years . . . .

                (b)   Notwithstanding subsection (a) of
           this section, in the case of any alien
           described in such subsection --
imprisonment.   On appeal, Eversley challenges the propriety of

this sentence to the extent that the district court used

sentencing guideline § 2L1.2(b)(2), which pertains to defendants

with a prior conviction of an aggravated felony and makes that

status a specific offense characteristic carrying a sixteen level

increase on the base offense level, as opposed to sentencing

guideline § 2L1.2(b)(1), which pertains to defendants with a

prior conviction of a non-aggravated felony and provides for only

a four level increase.2   Because we conclude that the district
(..continued)
                     (1)    whose deportation was
                subsequent to a conviction for
                commission of . . . a felony (other
                than an aggravated felony) such
                alien shall be . . . imprisoned not
                more than five years . . . or

                      (2)     whose deportation was
                subsequent to a conviction for
                commission of an aggravated felony,
                such    alien   shall  be   .  .  .
                imprisoned not more than 15 years .
                . . .

8 U.S.C.A. § 1326 (1993).
2
 . At the time of Eversley’s sentencing, section 2L1.2 of the
sentencing guidelines provided:

          § 2L1.2. Unlawfully Entering or Remaining in the
               United States

          (a)   Base Offense Level: 8

          (b)   Specific Offense Characteristics

                If more than one applies, use the greater:

                (1)   If the defendant previously was deported
                           after a conviction for a felony, other
                           than a felony involving violation of the
                           immigration laws, increase by 4 levels.
court’s use of guideline § 2L1.2(b)(2) was proper, we will

affirm.3

                                 I

           The defendant, a resident alien, was arrested and

convicted during 1988 in Brooklyn, New York for the sale of crack

cocaine, an aggravated felony, and was subsequently deported as a

controlled substance trafficker in January 1989.   In April 1994,

he was found within the United States, on the island of St. John,

by a United States Immigration Inspector.

           Following indictment and plea, the district court

sentenced Eversley for a violation of § 1326(b)(1).   In so doing,

the court applied, pursuant to guideline § 2L1.2(b)(2), a sixteen

level enhancement to Eversley’s base offense level of eight,

which resulted (following the grant of a three level downward

adjustment for Eversley’s acceptance of responsibility) in a

total offense level of 21.   Given Eversley’s criminal history

category of III, the applicable guideline range was forty-six to



(..continued)

                (2)   If the defendant previously was deported
                           after a conviction for an aggravated
                           felony, increase by 16 levels.


U.S.S.G. § 2L1.2 (1993).
3
 . In reaching this result, we need not address the question,
raised by Eversley on appeal, whether § 1326(b)(1) and (2)
constitute sentence enhancement provisions or criminal offenses
distinct from § 1326(a), because Eversley’s sentence of 50 months
was properly imposed even if we conclude that § 1326(b)(1) and
(2) constitute separate criminal offenses. See infra note 5.
fifty-seven months.    As we have stated, the court imposed a

sentence of fifty months.

          At his sentencing hearing Eversley contended that,

given his plea bargain agreement, the district court was required

to use the four level sentence enhancement of sentencing

guideline § 2L1.2(b)(1) (for defendants with a prior conviction

of a non-aggravated felony), and a corresponding applicable

guideline range of ten to sixteen months, instead of the sixteen

level enhancement of § 2L1.2(b)(2) (for defendants with a prior

conviction of an aggravated felony), which, as noted, resulted in

a much higher range.    The district court disagreed, but offered

him an opportunity to withdraw his plea if he felt that it did

not accord with his original understanding of the plea

arrangement.   App. at 49 & 51.   Eversley declined this offer and

argues on appeal that the district court erred, as a matter of

law, in applying guideline § 2L1.2(b)(2) to his conviction.     Our

review is plenary.    United States v. Collado, 975 F.2d 985, 989

(3d Cir. 1992).

                                  II

          Eversley concedes that he was in fact deported for the

commission of an aggravated felony.    He nonetheless repeats on

appeal his contention that, since his indictment was treated as a

violation of § 1326(b)(1) (re-entry after deportation following

commission of a felony "other than an aggravated felony") rather

than of § 1326(b)(2) (re-entry after deportation following

commission of an "aggravated felony"), the district court should

have applied the four level enhancement of sentencing guideline
§ 2L1.2(b)(1) (for the prior commission of a non-aggravating

felony) as opposed to the sixteen level enhancement of guideline

§ 2L1.2(b)(2) (for the prior commission of an aggravated felony).

Notwithstanding the parallel structure of the guideline and

statute, we disagree.   The fact that Eversley pled guilty to a

violation of § 1326(b)(1) did not eliminate, as we demonstrate,

the requirement that the sentencing court apply guideline

§ 2L1.2(b)(2) to his conviction.

           Section 2L1.2(b) provides for an offense level

enhancement for violations of § 1326, depending upon the presence

of specific offense characteristics, and states: "[i]f more than

one applies, use the greater."     U.S.S.G. § 2L1.2(b); see id.

Application Note 5 ("An adjustment under subsection (b)(1) or

(b)(2) for a prior felony conviction applies in addition to any

criminal history points added for such conviction in Chapter

Four, Part A (Criminal History).").     The sixteen point

enhancement of subsection (b)(2) was added by the sentencing

commission to strengthen the penalties for violations of § 1326

by eliminating the government’s need to request a discretionary

upward departure in cases where the defendant had been convicted

of a previous aggravated felony.    Commentary to Amend. 375.

           The structure and language of the guidelines make clear

that subsection (b)(2) of § 2L1.2 applies to all violations of
§ 1326.   Section 1B1.2(a) of the guidelines requires a sentencing

court, in selecting a guideline, to determine the particular

guidelines "most applicable to the offense of conviction."

Eversley was indicted for a violation of § 1326(b)(1), and
guideline 2L1.2 applies by its terms to all violations of 8

U.S.C. § 1326.    See U.S.S.G. § 2L1.2 (commentary -- statutory

provisions).    Similarly, the statutory appendix to the

guidelines4 refers to § 2L1.2, in its entirety, for all

violations of § 1326.    Eversley fails to point to anything in the

language or structure of the guidelines or the history

surrounding the adoption of § 2L1.2(b)(2) to suggest that the

sentencing commission intended it to apply only to violations of

§ 1326(b)(2).    Accordingly, we conclude that the district court

was required to apply the sixteen level enhancement of guideline

§ 2L1.2(b)(2) in this case, even though Eversley pled guilty to a

violation of § 1326(b)(1).

          Approaching the argument from a slightly different

angle, Eversley argues that the nature of the § 1326 violation

controls the court’s factual determination of the defendant’s

status as a felon or aggravated felon for purposes of applying

the specific offense characteristics of § 2L1.2(b).   In

particular, he contends that since he only pled guilty to having

entered the country illegally following the commission of a non-

aggravated felony, the court could not consider in sentencing him

the fact that he had actually been deported following the

commission of an aggravated felony.

          We reject this argument since the district court was

required in sentencing the defendant to consider all available

4
 . The statutory appendix "specifies the guideline section or
sections ordinarily applicable to the statute of conviction."
U.S.S.G. Statutory Appendix Introduction.
information in determining whether it was necessary to apply the

sixteen level enhancement of § 2L1.2(b)(2).   Guideline

§ 1B1.3(a)(4) clearly requires the sentencing court to determine

the sentence "on the basis of any other information specified in

the applicable guideline."   The fact that Eversley pled guilty to

subsection (b)(1) of § 1326, as opposed to (b)(2), did not

obviate the need of the sentencing court to abide by the dictates

of guideline § 1B1.3(a)(4) by assessing the particular character

of Eversley’s prior convictions and adjusting his sentence for

his prior commission of an aggravated felony as specified by

§ 2L1.2(b)(2).

           The two other courts of appeals to have addressed this

issue have also reached this conclusion.   In United States v.

Frias-Trujillo, 9 F.3d 875 (10th Cir. 1993), the court declared,

in upholding the application of the sixteen level enhancement of

§ 2L1.2(b)(2) to a defendant who pled guilty to a violation of

§ 1326(b)(1), that the structure of the guidelines "clearly

indicates that the sentencing court's consideration is not

limited by the particular subsection of 1326 at issue."   Id. at

877.   Moreover, the Ninth Circuit, which is the only circuit to

have treated § 1326(b) as a separate criminal offense, see infra
note 5, agrees with this analysis; it has concluded that,

notwithstanding a defendant’s plea to a violation of

§ 1326(b)(1), "[t]he clear language of the Sentencing Guidelines

requires the sentencing court to increase the base offense by

sixteen levels, if defendant was deported after conviction for an

aggravated felony."   United States v. Pena-Carrillo, 46 F.3d 879,
883-85 (9th Cir. 1995) (relying on United States v. Arias-

Granados, 941 F.2d 996 (9th Cir. 1991)).   Eversley simply offers

no argument to suggest these cases were incorrectly decided.5

5
 . The parties devote much attention to the issue of whether
§ 1326(b) constitutes a separate criminal offense or a sentence
enhancement provision for a violation of § 1326(a). This issue
implicates whether the government would need to establish a
defendant’s status under § 1326(b) as a "felon" or an "aggravated
felon" as an element of a § 1326(b)(1) or (2) offense. While the
proper characterization of § 1326(b) presents an interesting and
difficult question that has divided the courts of appeals, we
need not address this issue since Eversley’s sentence of 50
months was properly imposed even if we assume that § 1326(b)(1)
and (2) constitute distinct criminal offenses.
          This issue was first addressed by a court of appeals in
United States v. Campos-Martinez, 976 F.2d 589, 591 (9th Cir.
1992), where a defendant who had previously been convicted of a
felony was indicted and pled guilty to a violation of § 1326(a)
for illegal entry following deportation. While § 1326(a) carried
with it a maximum sentence of two years, the district court
imposed a sentence of 30 months, reasoning that § 1326(b)(1) and
(2) did not constitute separate crimes with different elements
and maximum sentences, but instead were merely sentence
enhancements for a violation of § 1326(a). The Ninth Circuit
reversed and concluded that the defendant’s 30 month sentence for
a § 1326(a) violation was improper since it exceeded that
provision’s two year statutory maximum. The court reasoned that
illegal reentry following deportation for the commission of a
felony is a distinct crime, as codified at § 1326(b)(1), and not
"merely a sentence enhancement factor for the crime of reentry
following deportation, which is codified at subsection 1326(a)."
Id. at 592 ("[S]ubsections 1326(a) and 1326(b)(1) describe two
different crimes with different elements and maximum
sentences.").
          After the decision in Campos, four other courts of
appeals addressed this issue, and all four disagreed with Campos
and concluded that the provisions of § 1326(b) are merely
sentence enhancements for a violation of § 1326(a). See United
States v. Cole, 32 F.3d 16, 19 (2d Cir.) (prior conviction
necessary to trigger subsection (b) need not be proven at trial),
cert. denied, 115 S. Ct. 497 (1994); United States v. Crawford,
18 F.3d 1173, 1177 (4th Cir.) (concluding that any alien who
violates § 1326(a) is "subject to" the penalty provisions of
§ 1326(b)), cert. denied, 115 S. Ct. 171 (1994); United States v.
Forbes, 16 F.3d 1294, 1300 (1st Cir. 1994) ("[P]olicy and
precedent persuade us that § 1326(b) should be construed as a
                                III

          In sum, Eversley pled guilty and was sentenced under

the guidelines to a violation of § 1326(b)(1).   He was fully

apprised that under his plea arrangement the court would

calculate his sentence pursuant to the sixteen level enhancement

of § 2L1.2(b)(2).    In applying this section to his violation, the

district court correctly interpreted the dictates of the

guidelines.    Accordingly, the judgment of the district court will

be affirmed.




(..continued)
sentence enhancement provision."); United States v. Vasquez-
Olvera, 999 F.2d 943, 945 (5th Cir. 1993) (same), cert. denied,
114 S. Ct. 889 (1994).
          Eversley asks that we follow the result reached by the
Ninth Circuit in Campos and require the government to establish
Eversley’s status as an "aggravated felon" as an element of a
distinct § 1326(b)(2) offense. But, the sentencing court in this
case did not rely on § 1326(b)(2), rather it imposed a sentence -
- 50 months -- well within the five year statutory maximum of
§ 1326(b)(1), a provision to which Eversley pled guilty. Unlike
the district court in Campos, the sentencing court in this case
did not rely on the fifteen year maximum sentence of § 1326(b)(2)
(for reentry following an aggravated felony conviction) to impose
a sentence in excess of the five year (b)(1) statutory maximum.
Therefore, as we have stated, we must leave for another day the
resolution of the question whether § 1326(b) constitutes a
separate criminal offense or a sentence enhancement provision.
