
USCA1 Opinion

	




          October 20, 1994      [NOT FOR PUBLICATION]                           UNITED STATES COUSRT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2256                                     UNITED STATES,                                      Appellee,                                          v.                              WILFIN ODALIS VIDAL-MEJIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                         Campbell, Senior Circuit Judge, and                                    ____________________                                Boudin, Circuit Judge.                                        _____________                                 ____________________            James B. Krasnoo on brief for appellant.            ________________            Donald  K.  Stern,  United  States Attorney,  and  James  F. Lang,            _________________                                  ______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                               Per  Curiam.  Appellant, Wilfin Odalis Vidal-Mejia,                      ___________            appeals  from  his  conviction  and  sentence.    His  court-            appointed  counsel  has filed  a  brief  in conformance  with            Anders v.  California, 386 U.S. 738 (1976).   Vidal-Mejia was            ______     __________            informed by counsel of his right to submit a supplemental pro            se brief, but has not done so.  We affirm.                                       Background                                      __________                 In April,  1993, Vidal-Mejia was charged  in a one-count            indictment   with  illegal   reentry  after   deportation  in            violation of 8  U.S.C.   1326(a)  and (b)(2).   Specifically,            the  indictment  charged that  after  having been  previously            arrested and deported following  a conviction for  commission            of an aggravated felony, Vidal-Mejia was found in the  United            States on or about March 7, 1993, without having received the            permission of the Attorney General to reapply for admission.                 Vidal-Mejia initially pleaded not guilty but changed his            plea to guilty at a hearing before the district court on July            6, 1993.  Although  there was no written plea  agreement, the            government informed the court that it had agreed to recommend            a three-level  reduction in the offense  level for acceptance            of  responsibility.     A  presentence  report   ("PSR")  was            prepared,  computing  a  total  offense  level  of  21  and a            criminal  history category of III.  The base offense level of            8 was  increased by 16  levels because  Vidal-Mejia had  been            deported follwing conviction of  an aggravated felony.  There            was a three-level reduction for acceptance of responsibility.            The  resulting  guideline imprisonment  range  was  46 to  57            months.                 Vidal-Mejia  moved  for a  downward  departure from  the            guidelines, arguing  that his sentence should  not exceed two            years.    One of  the  grounds for  his motion  was  that the            government was estopped from imposing a sentence in excess of            two years because an INS  notice given to him at the  time of            his deportation stated that  illegal reentry was penalized by            a maximum of two  years' imprisonment.  In fact,  at the time            of  appellant's deportation,  8 U.S.C.    1326(b)(2) provided            for a maximum  sentence of fifteen years  for illegal reentry            by an  alien deported  following conviction of  an aggravated            felony.  The  district court denied the  motion and sentenced            Vidal-Mejia  at the  low end  of the  guideline range,  to 46            months' imprisonment.  Vidal-Mejia appeals from that sentence            and his conviction.                                      Discussion                                      __________                 Counsel  for appellant  identifies the  following issues            that  might arguably support an appeal: 1) the district court            mistakenly believed  that it  lacked the authority  to depart            from  the guidelines  on  the  ground  of the  erroneous  INS            notice;  2)  the  government  is  estopped  from  imposing  a            sentence in  exess of two years;  3) a sentence  in excess of            two years  violates  the  Due Process  Clause  of  the  Fifth                                         -3-            Amendment  to the  Constitution;  and 4)  the district  court            failed  to comply  with  Fed. R.  Crim.  P. 11  in  accepting            appellant's guilty plea.   We agree with  the government that            none of these arguments has merit.                 1) Failure to Depart.  In denying appellant's motion for                    _________________            a downward  departure  on  the  basis of  the  erroneous  INS            notice,  the  district   court  concluded  that   "deterrence            necessitates  a more severe  sentence than that  to which the            defendant asked me to depart," and that "I  have no basis for            departure in the law."  We conclude from this record that the            district court determined that  it lacked the legal authority            to consider a  departure on the basis of the  INS notice.  We            therefore  have   jurisdiction  to   review,  de   novo,  the            correctness  of  that  determination. See  United  States  v.                                                  ___  ______________            Smith, 14 F.3d  662, 666 (1st  Cir. 1994).  We  addressed the            _____            identical question in Smith  and concluded that the erroneous                                  _____            INS notice  "does  not present  the  kind of  circumstance  a            sentencing  court  should  consider  to  support  a  downward            departure."  Id. at  666.   Therefore,  the district  court's                         ___            denial  of Vidal-Mejia's motion for a departure on that basis            was entirely proper.                 2)  Estoppel.   Appellant argues  that the  doctrines of                     ________            entrapment  by  estoppel  and  equitable  estoppel   bar  the            imposition  of  a  sentence in  excess  of  two  years.   The            "entrapment  by  estoppel"  argument  is  foreclosed  by  our                                         -4-            decision  in United States v. Troncoso, 23 F.3d 612, 615 (1st                         _____________    ________            Cir. 1994) (rejecting "entrapment by estoppel" argument under            almost  identical  circumstances because  "[a]ppellant cannot            show that  a government official erroneously  advised him the            particular act for which he  was convicted was actually legal            at the time that it was committed").                   In United States v. Troncoso, supra, we also rejected an                    _____________    ________  _____            equitable estoppel argument, but on the ground that there was            no  material misrepresentation.   In  that case,  unlike this            one,  the two-year maximum contained in the INS notice was an            accurate rendition  of the law as  it existed at the  time of            appellant's  deportation.   We  cited our  holding in  Smith,                                                                   _____            however, to suggest that  even had appellant been misinformed            of  the  consequences  of unlawful  reentry  and  purportedly            relied thereon in deciding to return, "[t]he sentencing court            cannot  countenance Smith's purposeful  decision to engage in            felonious conduct, and grant  him  the benefit of  a downward            departure, because Smith understood the penalty he would face            to be  relatively  minor." Smith,  14 F.3d at 666.   See also                                       _____                     ___ ____            Troncoso, 23 F.3d at 616.            ________                 In United States v. Perez-Torres,  15 F.3d 403 (5th Cir.                    _____________    ____________            1994),  the Fifth  Circuit refused to  apply the  doctrine of            equitable estoppel  under  identical circumstances.    Noting            that "'he who comes into equity must come with clean hands,'"            id.  at  407  (quoting   Precision  Instrument  Mfg.  Co.  v.            ___                      ________________________________                                         -5-            Automotive M.M. Co., 324 U.S. 806  (1945)), the Fifth Circuit            ___________________            concluded that the willful and knowing commission of a felony            (illegal reentry)  cannot constitute the  reasonable reliance            required by the equitable estoppel doctrine. Perez-Torres, 15                                                         ____________            F.3d  at   407.    See   also  Akbarin  v.   Immigration  and                               ___   ____  _______       ________________            Naturalization  Service, 669  F.2d 839,  844 (1st  Cir. 1982)            _______________________            (noting that a "petitioner's unclean hands . . . may preclude            him  from  asserting estoppel  against  the  Government"). We            agree  with  the  Fifth  Circuit and  conclude  that  because            appellant  cannot show  "reasonable reliance,"  his equitable            estoppel argument is without merit.                 3) Due Process.  This court has not previously addressed                    ___________            the  argument that the imposition  of a penalty  in excess of            the two year maximum contained in the INS notice violates due            process.  In rejecting this argument, however, we  follow the            approach of all  the circuits  that have addressed  it.   See                                                                      ___            United States  v. Samaniego-Rodriguez, Nos.  93-3015 and  93-            _____________     ___________________            4035, 1994  U.S. App.  Lexis 20311 at  *5 (7th  Cir. Aug.  4,            1994); United States v. Meraz-Valeta, 26  F.3d 992, 996 (10th                   _____________    ____________            Cir. 1994);  United States  v. Ullyses-Salazar, 28  F.3d 932,                         _____________     _______________            936  (9th Cir. 1994); Perez-Torres, 15 F.3d at 406.  We agree                                  ____________            with the following reasoning of the Fifth Circuit:                 As  [appellant] concedes, section  1326 clearly and                 unambiguously articulated  the penalties associated                 with a  reentry offense.   Thus, regardless  of the                 inaccuracy of  Form I-294, the statute  under which                                                _______                 Perez  was  convicted provided  notice  adequate to                 satisfy the requirements of due process.                                         -6-            Id. at 406 (emphasis in original).             ___                 4)  Rule ll.   Appellant's  final  argument is  that his                     _______            guilty  plea should  be  vacated because  the district  court            failed to comply  with the mandates  of Fed. R. Crim.  P. 11.            Specifically, he argues that the district court violated Rule            11 by  failing  adequately  to  explain and  ensure  that  he            understood  that the  maximum sentence  he could  receive was            fifteen years and that he was pleading guilty to two separate            charges contained in one indictment.                 At the change of plea hearing, appellant was represented            by  counsel and  aided by  an interpreter.   At  the district            court's request,  the government  explained that the  maximum            term of imprisonment that appellant could receive was fifteen            years.  (The  government  also   recited  the  maximum  fine,            supervised  release  and  special  assessment that  could  be            imposed.)    The  court   then  asked  appellant  whether  he            understood  that  "that's the  maximum  penalty  that can  be            imposed in this case?"  The appellant answered "yes."                 Appellant's contention that the  district court did  not            fulfill its  obligation under  Rule 11(c) to  ensure that  he            understood the charges  against him is belied  by the record.            Rule 11 "requires the  court both to inform the  defendant of            the nature of  the charge  and make a  determination that  he            understands it." United States v. Allard, 926 F.2d 1237, 1244                             _____________    ______                                         -7-            (1st Cir. 1991).  The district judge summarized the charge as            follows:                 Now, before I  can find you guilty  of the offense,                 even  on your plea, I have to be satisfied beyond a                 reasonable  doubt that there is sufficient evidence                 from which the Government could prove you guilty of                 the  offense of  being an  illegal  alien illegally                 reentering  the United  States  after  having  been                 deported.   The  Government has  to prove  that you                 knowingly and willfully reentered the United States                 without having received the  express consent of the                 Attorney   General,  that   it  didn't   happen  by                 inadvertence or mistake, but that  you really meant                 to be here knowing that you were a deported alien.            At the court's  request, the government then  stated what its            evidence would be if the case were to proceed to trial.                 The district  court's description of the  charge did not            specify that    1326(b) enhances the  penalty for deportation            following   conviction  of   an   aggravated  felony.     The            government,  however,  specifically  outlined   the  previous            convictions as part  of the  recitation of its  proof at  the            hearing.  This cured the omission.    See Allard, 926 F.2d at                                                  ___ ______            1246 (explanation  of charge may come from  the prosecutor in            the court's presence).  Moreover, in United States v. Forbes,                                                 _____________    ______            16 F.3d  1294, we held  that   1326(a)  and   1326(b)  do not            describe separate criminal  offenses with different  elements            and maximum penalties.  Instead, we concluded that   1326 (b)            should be construed as a sentence  enhancement provision. Id.                                                                      ___            at 1297-1300.  Therefore, the alleged failure specifically to            inform   appellant of the prior aggravated felony aspect of              1326(b)  did not violate Rule 11 where the court ensured that                                         -8-            appellant  understood  that the  maximum penalty  was fifteen            years.                 Appellant's brief  indicates that counsel  conducted the            requisite review and  analysis of the  case. See Anders,  386                                                         ___ ______            U.S.  at  744.    Having carefully  reviewed  the  record  in            accordance with  our obligation  under Anders, we  agree that                                                   ______            the  appeal  is indeed  without  merit.   The  conviction and            sentence are summarily affirmed pursuant to Loc. R. 27.1.                                   ________                                         -9-
