
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1722                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    TYRONE SMITH,                                   a/k/a PAUL GLEN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                             Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                                _____________________               Annemarie Hassett, Federal Defender Office, for appellant.               _________________               Robert E. Richardson, Assistant United States Attorney, with               ____________________          whom A. John Pappalardo, United States Attorney, was on brief for               __________________          appellee.                                 ____________________                                   January 28, 1994                                 ____________________                    TORRUELLA, Circuit  Judge.   Defendant-appellant Tyrone                               ______________          Smith was  indicted in the  United States District Court  for the          District  of Massachusetts for  unlawful reentry into  the United          States  following deportation, in  violation of 8  U.S.C.   1326.          Smith moved to dismiss the indictment, collaterally attacking the          deportation  order  upon which  the  indictment was  based.   The          district court denied the motion.  Smith then entered into a plea          agreement  in  which he  pleaded  guilty  to the  indictment  but          reserved the  right to appeal  from the denial  of the motion  to          dismiss the indictment.   Smith now appeals this  denial, as well          as  the district  court's denial  of  his motion  for a  downward          departure from  the applicable  sentencing guideline  range.   We          affirm.                                      I.  FACTS                                      I.  FACTS                    A.  The Underlying Deportation                    Smith, a citizen of Jamaica, lived in the United States          as a  lawful permanent  resident.  In  March of  1989, Smith  was          convicted for unlawful possession of a firearm and trafficking in          cocaine.   The  Immigration and  Naturalization  Service  ("INS")          subsequently commenced  deportation proceedings against  Smith by          issuing an order to show cause.  On September 11, 1991, Smith was          arrested and served with the order to show cause.                    On  September  20,  1991,  Smith  appeared  before  the          immigration court and informed the immigration  judge that he was          represented by Paul Carrigan, a Boston attorney.  The immigration          judge informed Smith that he  should appear with his attorney for                                         -2-                                          2          a deportation hearing on September 27, 1991.  The judge also told          Smith  that there would be a bond hearing on the same day.  Smith          contends that he did not  know that the deportation hearing would          take place on September 27,  1991; rather, he thought there would          only be a bond hearing on that date.                    Smith  appeared  at  the  September  27,  1991 hearing.          Attorney  Carrigan did  not  appear.    Another  attorney,  Manny          Daskal, however,  did appear  on behalf of  Smith, but  only with          respect to  the bond aspects  of the hearing.   At this  hearing,          when  the immigration  judge asked  Smith  if he  had counsel  to          represent him for the deportation hearing, Smith replied  that he          did not.  The immigration judge then  told Smith that he had been          given ample time to obtain counsel,  and that the judge was going          forward  with  the deportation  hearing  with Smith  representing          himself.                    The  deportation   hearing  then  commenced,   and  the          immigration judge explained the procedure that would be followed.          After the  evidence had  been introduced,  the immigration  judge          told Smith that  based on the types  of offenses of which  he had          been  convicted,  a waiver  was  not  available  to Smith.    The          immigration judge then issued an oral order of deportation.                    The immigration  judge then  announced that notices  of          appeal had  to be  filed by  October 7, 1991,  and explained  the          appeal process  to Smith.   On  October 9,  1991, Smith  filed an          appeal with  the  Board of  Immigration  Appeals in  which  Smith          claimed that the  immigration judge erred by  failing to consider                                         -3-                                          3          the fact that he had five children living in Boston, and that his          wife  was mentally  ill.  Smith  did not  claim that he  had been          denied  his right  to counsel  at  the deportation  hearing.   On          November 14,  1991, before any  action was taken with  respect to          Smith's  appeal,  Attorney  Carrigan sent  a  letter  to  the INS          stating, in pertinent part:  "I am an attorney for Tyrone  Smith.          I hereby withdraw  any pending appeals he may  have regarding the          above  referenced   deportation  matter."    Smith  himself  also          submitted a handwritten statement withdrawing his appeal.                    B.  The Deportation                    Smith was  deported on November  20, 1991.  As  part of          the deportation process, the INS gave Smith a notice, INS FORM I-          294, which  stated that in the event that  he wished to return to          the  United States,  he had  to obtain  permission and  that "any          deported  person who within five years returns without permission          is  guilty of  a felony.    If convicted  he may  be  punished by          imprisonment of not more than two years and/or a fine of not more          than  $1000.00."    Smith signed  the  notice,  acknowledging his          receipt of  the  document.   INS Form  I-294 only  set forth  the          penalties generally applicable to a violation of 8 U.S.C.   1326,          but  did not  state the  more  severe penalties  that applied  to          aliens, who,  like  Smith, had  been convicted  of an  aggravated          felony.  In  fact, the penalty Smith would face if he returned to          the United States without  permission was imprisonment for  up to          fifteen years.                    C.  The Subsequent Criminal Prosecution                                         -4-                                          4                    Despite the  deportation order,  Smith returned to  the          United States, and was subsequently apprehended.  On November 12,          1992, the grand  jury returned a single count indictment charging          Smith  with  illegally  returning  to  the  United  States  after          deportation and  having been convicted of an aggravated felony in          violation of 8 U.S.C.   1326(a) and (b)(2).  On January 19, 1993,          Smith  moved  to  dismiss the  indictment,  maintaining  that the          deportation   proceeding    underlying   his    deportation   was          fundamentally unfair  and that  he was  functionally deprived  of          judicial  review and  due  process.   On  January  21, 1993,  the          district court held  a hearing with respect to  Smith's motion to          dismiss, and  then denied the motion.  On February 1, 1993, Smith          entered a conditional plea of  guilty, and preserved his right to          seek  review  of  the  denial   of  his  motion  to  dismiss  the          indictment.                    At the sentencing hearing on April 8, 1993, Smith moved          for  a downward departure  from the applicable  sentencing range.          Smith   argued  that  the  government  engaged  in  actions  that          mitigated  his conduct when  the INS gave  him Form  I-294 at the          time of his deportation, which incorrectly stated the  penalty he          would  face if  he returned  to the  United States.   Smith  also          submitted an affidavit stating that  he relied on Form I-294 when          he decided  to return to the  United States.   The district court          denied Smith's motion  for a downward departure,  indicating that          it  would be  antithetical to  the  policy behind  the Sentencing          Reform Act, which  is to deter people from  committing crimes, to                                         -5-                                          5          grant  his  motion, given  that  the  facts indicated  Smith  had          knowingly committed a felony.  The district court  then sentenced          Smith to 70 months in prison.                                         -6-                                          6                      II.  THE MOTION TO DISMISS THE INDICTMENT                      II.  THE MOTION TO DISMISS THE INDICTMENT                    Smith claims that he was denied his right to counsel at          the  September 27, 1991 deportation hearing.  Specifically, Smith          claims  that the  immigration  judge  erred  at  his  deportation          hearing either by compelling  him to go forward unrepresented  or          by not explicitly asking him whether  he wanted representation at          the  deportation hearing.    Therefore,  Smith  seeks  to  attack          collaterally the original  order of deportation, arguing  that it          cannot properly  serve as  the basis for  his indictment  under 8          U.S.C.   1326.1                    To  provide a  basis  to  attack  a  deportation  order          collaterally  in a subsequent  criminal prosecution,  a defendant          must  show  that  any  error   committed  with  respect  to   the                                        ____________________          1  8 U.S.C.   1326 (Supp. 1993) provides in pertinent part:                    (a)  Subject   to  subsection  (b)   of  this                    section, any alien who --                      (1)  has been  arrested  and deported  or                      excluded and deported, and thereafter                      (2) enters, attempts to  enter, or is  at                      any  time found  in,  the United  States,                      . . .                     shall be fined under  Title 18, or imprisoned                    not more than 2 years, or both.                    (b)   Notwithstanding subsection (a)  of this                    section,  in the case  of any alien described                    in such subsection --                                        . . .                      (2) whose deportation was subsequent to a                      conviction   for    commission   of    an                      aggravated  felony, such  alien shall  be                      fined  under such  Title, imprisoned  not                      more than 15 years, or both.                                         -7-                                          7          deportation hearing  violated his  due process  rights, and  that          this   error  was   "'so   fundamental'   that  it   'effectively          [eliminated] the right  of the alien to obtain judicial review'".          United States v. Vieira-Candelario, 6 F.3d 12, 15 (1st Cir. 1993)          _____________    _________________          (quoting United States v.  Mendoza-L pez, 481 U.S. 828, 837-39  &           _______ _____________     _____________          n.17   (1987)).      "'[W]here  a   determination   made   in  an          administrative proceeding  is  to play  a  critical role  in  the          subsequent imposition of a criminal  sanction, there must be some                                                                       ____          meaningful review  of the  administrative proceeding.'"   Vieira-                                                                    _______          Candelario, 6 F.3d at 15 (quoting Mendoza-L pez, 481 U.S. at 837-          __________                _______ _____________          38).                    The  First  Circuit  has  recently  considered  a  case          analogous to the present situation, and its  holding controls our          decision here.    In  Vieira-Candelario,  the  immigration  judge                                _________________          apparently erred in  ruling that the  defendant was not  eligible          for  a  waiver  pursuant  to    212(c)  of  the  Immigration  and          Naturalization Act,  8 U.S.C.    1182(c).   6  F.3d at  15.   The          immigration  judge advised the  defendant regarding his  right to          appeal.   Id. at 13.    The day after the  hearing, the defendant                    __          did, in fact,  file a notice of appeal in which he challenged the          immigration judge's  ruling.  Id.   The issue was  never reached,                                        __          however,  because the  defendant  withdrew  his  appeal  and  was          deported shortly  after doing so.   Id.  INS  agents subsequently                                              __          found Vieira in  Providence, Rhode Island,  and charged him  with          violating  8 U.S.C.    1326.    Id.   Vieira moved  to  quash the                                          __          indictment   and  to  dismiss   the  indictment  by  collaterally                                         -8-                                          8          attacking  the deportation  order,  arguing  that  it  could  not          properly serve as  the basis for his indictment under  8 U.S.C.            1326.  Id.  In rejecting the defendant's collateral attack on the                 __          deportation order, this Court observed:                      Here,  in contrast  to  the situation  in                      Mendoza-L pez,  the  immigration  judge's                      _____________                      putatively  erroneous  decision  did  not                      "effectively" rob Vieira of his right  to                      review.  Vieira filed a notice of appeal.                      He   later   deliberately   withdrew  the                      appeal.   He was  represented by  counsel                      throughout.      As   Vieira  voluntarily                      abandoned his right  to obtain review  of                      the deportation  order, we see  no way to                      hold that  he was deprived  of meaningful                      review of  the administrative  proceeding                      contrary to the due process clause.          Id. at 15.          __                    Smith  claims that the  immigration judge erred  at the          deportation hearing by denying him his right to counsel.   At the          conclusion of the deportation  hearing, however, the  immigration          judge  explained the appeal process to Smith, which required that          a  notice  of appeal  be  filed  with  the Board  of  Immigration          Appeals.   Smith  then availed  himself of  his right  to appeal,          albeit  not on the  ground that he  was deprived of  his right to          counsel.  The  appeal process then ended only  because Smith, and          his  attorney, Mr. Carrigan, sent letters to the INS deliberately          withdrawing the appeal.                    While this  case does differ from  Vieira-Candelario in                                                       _________________          that Smith claims that he was deprived of his right to counsel at          the  deportation hearing, this difference does not alter the fact          that  Smith  was afforded  the  opportunity  to appeal  from  the                                         -9-                                          9          immigration  judge's decision.    The fact  that  Smith filed  an          appeal  demonstrates that  he  understood  his appellate  rights.          Moreover,  Smith consulted with his attorney regarding the appeal          process, as evidenced by the fact that Attorney Carrigan, as well          as Smith, sent a  letter to the INS withdrawing the  appeal which          Smith did file.  Additionally, while Smith did not appeal on  the          ground  that he had been deprived of  counsel, he could have done          so.    Because  nothing  that  happened  in  Smith's  deportation          proceeding  affected his ability to appeal, his collateral attack          on the deportation hearing must fail.                                   III.  SENTENCING                                   III.  SENTENCING                    Smith challenges the district court's refusal  to grant          him a downward  departure from the sentencing range  set forth in          the Sentencing  Guidelines.  Smith  argues that by virtue  of the          form the INS gave him at the time of his deportation, INS Form I-          294,  the government erroneously informed him of the consequences          of returning unlawfully to the country.  The INS told Smith  that          the  maximum penalty  he would face  was two  years imprisonment,          instead of the correct penalty  of 15 years.  Smith submitted  an          affidavit stating that  he relied upon this form  when he decided          to return to  the United  States, and  that had he  known of  the          higher  penalty he would face, he  would not have returned to the          United States.  Therefore, Smith contends that this constituted a          mitigating circumstance  that the  Sentencing Commission  had not          taken  into account  when it  formulated  the guidelines,  and it          warranted a downward  departure.  Smith argues  that the district                                         -10-                                          10          court improperly denied  his motion by concluding  that it lacked          the legal  authority to consider  the INS  notice as a  basis for          departure under the Sentencing Guidelines.                    The   government  argues   that   the  district   court          understood  that it  had the  power to  consider whether  the INS          notice  provided a  ground  for  departure  from  the  Sentencing          Guidelines.   But, the  government contends,  the district  court          simply refused to exercise its discretion to depart downward.                    Ordinarily, a district court's  refusal to exercise its          discretion  and depart downward from the sentencing guidelines is          not appealable.  United States v. Lombardi, 5 F.3d  568, 571 (1st                           _____________    ________          Cir. 1993);  United  States v. Rushby, 936 F.2d 41,  42 (1st Cir.                       ______________    ______          1991).   Appellate jurisdiction  may attach,  however, where  the          district court's decision  not to depart is based  on the court's          view that it  lacks the legal authority to  consider a departure.          United States v. Romolo, 937 F.2d 20, 22-23 (1st Cir. 1991).  The          _____________    ______          record  can be  fairly read  to support  the conclusion  that the          district  court believed  that it lacked  the legal  authority to          depart  under the  Guidelines on  the basis  of the  INS notice.2          Thus,  we review  the  district  court's  decision  to  determine          whether or  not, it  did, in  fact, possess  the power  to depart          downward based on this circumstance.                    Plenary  review is  appropriate where  the question  is                                        ____________________          2  If we were to conclude that the district court understood that          it had the power to  depart downward, but chose not to do  so, we          would not have  jurisdiction to consider Smith's  appeal, and the          district court's sentence would stand.                                         -11-                                          11          "whether  or not the  allegedly special circumstances  (i.e., the          reasons for departure) are of  the 'kind' that the Guidelines, in                                                                         __          principle,  permit  the  sentencing court  to  consider  at all."          _________          United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993).          _____________    ______                    Under the  Sentencing Reform  Act, a  court may  depart          downward if it finds that there was a mitigating circumstance "of          a  kind"   which the  Sentencing  Commission did  not "adequately          take[] into  consideration .  . .  in formulating  the guidelines          that should result in a sentence different from that  described."          18 U.S.C.   3553(b); U.S.S.G.    5K2.0, p.s.; Rivera, 994 F.2d at                                                        ______          946-47.   If the court  finds that the sentencing  commission did          not  adequately take a  circumstance into consideration,  it must          then  determine if  the circumstance  is of  a kind  which should          justify a departure.  To  make this determination, a court should          look  to  the  sentencing system's  purposes  and  the guidelines          themselves.  See Rivera, 994 F.2d at 947, 949.  18  U.S.C.   3553                       ___ ______          specifies  the purposes which the sentencing system is attempting          to  achieve,  and  provides that  in  determining  the particular          sentence  to be  imposed, a  court should  consider, among  other          factors, the  need for the  sentence imposed "to  promote respect          for  the law,"  and "to  afford adequate  deterrence  to criminal          conduct."  18 U.S.C.   3553(a)(2)(A) & (B).                    We do not  believe that when the  Sentencing Commission          formulated  its guidelines,  it considered  an unusual  situation          like the present one.   Despite this lack of prior consideration,          however, this situation does not present the kind of circumstance                                         -12-                                          12          a   sentencing  court  should  consider  to  support  a  downward          departure.                    Smith contends that  because he relied on an INS notice          that misstated the criminal penalty he would face if he illegally          returned to  the United States,  he should be granted  a downward          departure.  Smith's contention runs counter  to a primary purpose          of the  sentencing system,  which is to  deter criminal  conduct.          The  Sentencing Guidelines were  established, in part,  to create          penalties  which were  high  enough  to  discourage  people  from          committing a particular  crime.  Smith implicitly  admits that he          intentionally  committed a felony.   The 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.  Rather,  the sentencing court was  required to          sentence  Smith within the  applicable sentencing range,  so that          Smith and others would be  deterred from illegally reentering the          country in  the future.  Therefore, the  district court's finding          that this was not the kind of circumstance  that should justify a          downward departure was proper, and its decision is affirmed.                    Affirmed.                    ________                                         -13-                                          13
