
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2130                                    UNITED STATES,                                      Appellee,                                          v.                                  RADHAME TRONCOSO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                                 ____________________                                        Before                           Selya and Boudin, Circuit Judges,                                             ______________                             and Carter,* District Judge.                                          ______________                                 ____________________            Gordon  R.  Blakeney,  Jr.,  by  Appointment  of  the  Court,  for            __________________________        appellant.            Jean B. Weld, Assistant United States  Attorney, with whom Paul M.            ____________                                               _______        Gagnon, United States Attorney, was on brief for appellee.         ______                                 ____________________                                     May 18, 1994                                 ____________________        ____________________        *Of the District of Maine, sitting by designation.                       CARTER, Chief District Judge.*                       Radhame  Troncoso  appeals   his  conviction   and             sentence for  illegal reentry  into the United  States after             having  been  deported  subsequent   to  conviction  for  an             aggravated felony, 8 U.S.C.   1326(b)(2).  We affirm.                                I.  FACTUAL BACKGROUND                                I.  FACTUAL BACKGROUND                                ______________________                       Appellant,  Radhame  Troncoso, from  the Dominican             Republic,  has  been   convicted  several   times  of   drug             trafficking and other related offenses in the United States.             The conviction  most relevant to  this appeal took  place on             January  25,  1988,  when   Appellant  was  convicted  in  a             Massachusetts state court on charges including possession of             cocaine  with intent  to distribute.   Appellant  served his             prison sentence and was then turned over to officials of the             Immigration  and  Naturalization   Service  ("I.N.S.")   who             deported him  on several grounds, including  conviction of a             drug  trafficking  offense.    The  deportation  occurred on             October 26, 1988.  At that time, the I.N.S. warned Appellant             that if he  returned to the U.S. within five years, he would             be  guilty of  a felony and  subject to  up to  two years in             prison as provided for by section 1326,  before that section                                        - 2 -                                         -2-             was amended  by the Anti-Drug Abuse  Act of 1988.   8 U.S.C.               1326.1                        Appellant  did  return  undetected to  the  United             States at some point and was convicted in New York on August             29,  1991,  on drug-related  charges  but  was not  deported             following his incarceration.2  He was later arrested  in New             Hampshire on October 30, 1992, convicted of selling cocaine,             and  received a suspended sentence in April of 1993.  He was             also charged with violating  section 1326(b)(2) based on his             earlier deportation in connection with the January 25, 1988,             conviction.   Section  1326(b)(2),  which  had been  amended             since Appellant's  conviction and deportation,  enhanced the                                              ____________________                       *Of the District of Maine, sitting by designation.             1Prior to the enactment  of the Anti-Drug Abuse Act  of 1988             ("ADAA"), section 1326 provided  for a maximum two-year term                                                    ________________             of  imprisonment  for  any  alien who  had  been  previously             arrested  and  deported  and  was  thereafter  convicted  of             reentry, attempted              reentry,  or  being  found  in  the  United  States  without             permission.   8  U.S.C.   1326  (1987).   When the  ADAA was             enacted on  November 18, 1988,  section 1326 was  amended to             provide for a maximum  fifteen-year term of imprisonment for                           _____________________             any alien  who was convicted of  reentry, attempted reentry,             or  being found  in  the U.S.  after having  been previously             arrested  and  deported  subsequent  to  a   conviction  for             commission   of   an   aggravated    felony.      8   U.S.C.               1326(b)(2)(Supp. 1993).             2The  Government  argues  that  Appellant was  not  deported             following the New  York conviction because he  used an alias             which prevented I.N.S. agents from identifying him.                                        - 3 -                                         -3-             maximum  penalty for  unlawful reentry  from two  to fifteen             years  for  aliens  who  had  been  deported  subsequent  to             conviction  for  committing an  aggravated  felony.   See  8                                                                   ___             U.S.C.    1326(b)(2)(Supp.  1993).    On  August  30,  1993,             Appellant  was  convicted  and  sentenced to  60  months  in             prison.                                     II.  DISCUSSION                                   II.  DISCUSSION                                   _______________                       Appellant challenges the  district court's  denial             of  his  motion  to  dismiss the  indictment,  arguing  that             Congress did  not intend for section  1326(b)(2), as amended             by  the Anti-Drug Abuse Act  of 1988, to apply retroactively             to persons  who  were convicted  and deported  prior to  the             Act's  effective date.   8  U.S.C.   1326(b)(2).   Appellant             argues, in the alternative, that applying section 1326(b)(2)             retroactively  to his case violates the ex post facto Clause                                                     __ ____ _____             of the United States Constitution.  U.S. Const. art. I,   9,             cl.  3.   He  also argues  that  the doctrines  of equitable             estoppel  and estoppel  by entrapment  bar the  court, as  a             matter of law, from sentencing him beyond a two-year term of             imprisonment in light of  the representations made by I.N.S.             agents  at the time of  his deportation.   Lastly, he argues             that the  district court erred by treating his New Hampshire             state conviction as a "prior sentence,"  rather than as part                                        - 4 -                                         -4-             of  the  instant offense  of  violating section  1326(b)(2),             pursuant   to   section   4A1.2(a)(1)   of   the  Sentencing             Guidelines.  U.S.S.G.   4A1.2(a)(1).                              A.  Statutory Construction                              A.  Statutory Construction                              __________________________                       Appellant's    first     argument    focuses    on             Congressional  intent   with  respect  to   the  retroactive             application  of  section  1326(b).    8  U.S.C.    1326(b).3                                              ____________________             3Section 1326 provides in pertinent part that:                            (a) Subject to subsection (b),                            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,                                 t h e    U n i t e d                                 States . . .                             shall be fined under Title 18,                            United    States    Code,   or                            imprisoned  not  more  than  2                            years or both.                            (b) Notwithstanding subsection                            (a), in the case of  any alien                            described  in  such subsection                            --                                       .      .                                        .     .                                         .                                    ( 2 )      w h o s e                                 deportation      was                                        - 5 -                                         -5-             Section 1326(b) was added to the Immigration and Nationality             Act  ("INA") on November 18, 1988, when Congress enacted the             Anti-Drug Abuse Act  of 1988 ("ADAA"). See  Pub. L. 100-690,                                                    ___             Title VII,  Subtitle J,   7345(a), 102  Stat. 4471 (codified             as amended  at 8  U.S.C.   1326(b)(1988)).   Apart  from the             statutory text,  the Act provided that  the amendment adding             section  1326(b)  "shall  apply  to any  alien  who  enters,             attempts to enter, or  is found in, the United  States on or             after the date of the enactment of this Act."  The ADAA also             added  a provision  to  the INA  defining  the new  term  of             "aggravated  felony" to include  murder, illicit trafficking             in any controlled substance, money laundering, and crimes of             violence  carrying at  least 5 years  of imprisonment.   See                                                                      ___             Pub. L.  100-690, Title VII,  Subtitle J,   7342,  102 Stat.             4469  (codified as amended at 8 U.S.C.   1101(a)(43)(1988)).             The  Act did  not include  a section  limiting  the temporal             applicability of the "aggravated felony" definition.                                                ____________________                                 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.                       8 U.S.C.   1326 (Supp. 1993).                                        - 6 -                                         -6-                       The parties do  not dispute that  Appellant's drug             conviction,  which precipitated  his deportation  on October             26, 1988,  falls into the definition  of "aggravated felony"             in section 1101(a)(43).   8 U.S.C.   1101(a)(43).  The issue             in  dispute  is   whether  Congress  intended  for   section             1326(b)(2), as it incorporates section 1101(a)(43), to apply             retroactively  to an  alien who  was convicted  and deported             prior  to the ADAA amendments.   In Matter  of A-A-, Interim                                                 _______________             Dec.  3176  (BIA 1992),  the  Board  of Immigration  Appeals             interpreted the  plain language  of the  amended provisions,             along  with the  applicability section  accompanying section             1326(b),  and  concluded   that  the  enhanced  fifteen-year             criminal penalty is:                            applicable  to `any  alien who                            enters,  attempts to  enter or                            is found in, the United States                            on  or  after   the  date   of                            enactment of [the November 18,                            1988]  Act.' . . .     For  an                            alien  reentering  the  United                            States  on November  18, 1988,                            to   be   subject   to   these                            criminal penalties,  the alien                            would need to have  suffered a                            conviction   and   deportation                            before November 18, 1988.   It                            would be virtually  impossible                            for an alien  convicted of  an                            aggravated  felony to  reenter                            or  be  found  in  the  United                            States   on    the   date   of                            enactment      unless      the                            definition    of    aggravated                                        - 7 -                                         -7-                            felony   included  convictions                            occurring before that date.              This  Court  adopted  the  BIA's reasoning  in  Barreiro  v.                                                             ____________             I.N.S.,   989  F.2d   62   (1st  Cir.   1993)(upholding  the             ______             retroactive application of  the aggravated felony definition             as  it  was  incorporated  into a  "waiver  of  deportation"             provision,  serving to  bar  a  seven-year domiciliate  from             seeking a waiver from deportation pursuant to section 212(c)             of the INA, 8 U.S.C.   1182(c)(Supp. 1992)).  In a case very             similar to the facts  at hand, U.S. v. Forbes, 16  F.3d 1294                                            ______________             (1st  Cir.  1994),  this  Court upheld  a  conviction  under             section  1326(b)(2) based  on aggravated  felony convictions             that  occurred  prior  to  the effective  date  of  the ADAA             amendments.  In oral argument, Appellant was unable to point             to  any case  law in  support of  his position  that section             1326(b)(2)  was  not intended  to be  applied retroactively.             Given the law of this  circuit and the plain meaning  of the             provision,  we affirm  the  district court's  application of             section 1326(b)(2) to Appellant's conviction.                         B.  Alleged Ex Post Facto Violation                         B.  Alleged Ex Post Facto Violation                         ___________________________________                       Appellant  argues that  even if  Congress intended             for  section 1326(b)(2)  to  be  applied retroactively,  the             effect of retroactive  application in his situation  results             in  a  violation  of the  ex  post  facto  provision of  the                                       __  ____  _____                                        - 8 -                                         -8-             Constitution.  See U.S.  Const. art. I,   9, cl.  3 (barring                            ___             the  retrospective  application  of  laws   that  materially             disadvantage  a  defendant).    Appellant  argues  that  the             Government  failed  to  present   evidence  ruling  out  the             possibility that he returned to the United States subsequent             to his October, 1988, deportation but prior to  November 18,             1988,  when the ADAA amendments went into effect.  He argues             that an ex post facto violation has occurred with respect to                     __ ____ _____             him and the class  of convicted-and-deported aliens who were             in  the country  on the  date of  enactment because  "such a             person's status is changed, and liability thus increased, by             an act, of  the legislature,  of which such  persons had  no                ___  __  ___ ___________             notice, nor  opportunity to avoid, even  given such notice."             Appellant's Brief at 27.                         In Forbes, this Court held that the inclusion of a                          ______             defendant's prior drug convictions  to trigger the  enhanced             criminal penalties of section 1326(b)(2) did not violate the             ex  post  facto  Clause,  where  the  convictions  had  been             __  ____  _____             obtained prior to the  ADAA amendments.  Forbes, 16  F.3d at                                                      ______             1301-02.   Citing Gryger v. Burke, 334 U.S. 728 (1948), this                               _______________             Court  reasoned  that   the  enhanced  fifteen-year  penalty             applies  to the  crime  of  unlawful  reentry and  does  not             increase the  punishment for  crimes committed prior  to the                                        - 9 -                                         -9-             ADAA amendments.  Id. at 1302.   Appellant distinguishes his                               ___             situation  by  pointing out  that  the  appellant in  Forbes                                                                   ______             committed the offense of  unlawful reentry after the amended                                                        _____             section  went  into  effect,   whereas  Appellant  may  have             committed the offense of unlawful  reentry prior to the ADAA             amendments.   But  section 1326(a)(2)  defines the  criminal             conduct  more  expansively   to  include  entry,   attempted             reentry,  or  being  found  in  the  United  States  without                           _____  _____  __             permission.  Appellant was  indicted and convicted of "being             found  in  the  United   States"  in  violation  of  section             1326(b)(2).   His offense occurred on October 30, 1992, well             after  the  ADAA  amendments and  not  on  the  date of  his             undetected  reentry.   Hence, Appellant  fails to  satisfy a             critical element for establishing that a criminal law has ex                                                                       __             post facto effect; he  fails to demonstrate that the  law is             ____ _____             "retrospective, that  is, it must apply  to events occurring             before  its enactment."  Weaver  v. Graham, 450  U.S. 24, 29                                      _________________             (1981); see  also U.S. v. Alvarez-Quintero, 788 F. Supp. 132                     ___  ____ ________________________             (D.R.I. 1992)(finding no ex post facto violation where court                                      __ ____ _____             applied  an  amended  Sentencing  Guideline  increasing  the             penalty for reentry  of an alien deported  for an aggravated             felony,  even when  reentry predated the  amended Guideline,             because the section 1326(b)(2)  offense occurred on the date                                        - 10 -                                         -10-             the alien was found in the United States and not on the date             of the unlawful reentry).                C.  Sentencing:  Entrapment by Estoppel and Equitable                C.  Sentencing:  Entrapment by Estoppel and Equitable                _____________________________________________________             Estoppel             Estoppel             ________                       Appellant argues that the court should be estopped             from   sentencing   him   beyond   two   years    based   on             representations  made   to  him  by  the   I.N.S.  upon  his             deportation, indicating that unlawful reentry  could subject             him to a  maximum two-year prison term.  The  Court need not             discuss this  argument in detail because  Appellant fails to             satisfy threshold  elements of  the two  estoppel doctrines.             First, with respect  to "entrapment by estoppel,"  Appellant             cannot  show that a  government official erroneously advised             him that the particular  act for which he was  convicted was             actually  legal at the time it was committed.  United States                                                            _____________             v. Smith, 940  F.2d 710, 714 (1st Cir.  1991).  Second, with             ________             respect to equitable estoppel, Appellant cannot show that he             relied upon a material misrepresentation, because the I.N.S.             informed  Appellant that he would  face up to  two years for             unlawful  reentry which was an accurate rendition of the law             as it existed on  the date of Appellant's deportation.   See                                                                      ___             Heckler v. Community Health Services, Inc., 467 U.S. 51,  59             __________________________________________             (1984); K-Mart Corp. v. Oriental  Plaza, Inc., 875 F.2d 907,                     _____________________________________                                        - 11 -                                         -11-             912  (1st Cir. 1989)(defining elements of equitable estoppel             to include a  material misrepresentation of a party  who had             reason to know  of its falsity and  reasonable reliance upon             the misrepresentation to the charging party's disadvantage).             Further, this  Court has recently  held that even  where the             I.N.S. erroneously informed a  deportee of the penalty faced             upon  reentry,  such an  error  is not  a  mitigating factor             justifying   a  downward  departure   under  the  Sentencing             Guidelines.    U.S.  v.   Smith,  14  F.3d  662  (1st   Cir.                            ________________             1994)(holding that, even where  defendant was misinformed as             to the consequences  of unlawful reentry and stated  that he             returned  in  reliance  on  the  misrepresentation,  such  a             circumstance did  not  justify a  downward  departure  where                                                                    _____             defendant made a purposeful  decision to engage in felonious             ____________________________________________________________             conduct).   Hence,  Appellant's arguments regarding  the two             _______             estoppel doctrines are unavailing.             D.  Sentencing:  Alleged Error in Computing Criminal History             D.  Sentencing:  Alleged Error in Computing Criminal History             ____________________________________________________________                       Appellant argues that the  district court erred in             determining that his  New Hampshire  conviction for  selling             cocaine   on  October 30,  1992,   was  a  "prior  sentence"             resulting in  an additional  two points  being added  to his             criminal history computation pursuant to section 4A1.2(a)(1)                                        - 12 -                                         -12-             of  the Sentencing  Guidelines.    U.S.S.G.    4A1.2(a)(1).4             Appellant argues  that his  conduct in violation  of section             1326(b)(2) came to light only through his arrest for selling             cocaine.  Since "he was found in this country in the process             of committing that  [state] offense", Appellant argues  that             the  offense conduct of selling cocaine  should be viewed as             part  of  the instant  offense and  not  counted as  a prior             sentence.  See Trial Transcript (Aug. 30, 1993) at 29-30.                         ___                       The  commentary  to  section 4A1.2 defines  "prior             sentence" as "a sentence imposed prior  to sentencing on the             instant offense, other  than a sentence for conduct  that is             part of  the instant  offense."  U.S.S.G.    4A1.2, comment.             (n.1).   Here, Appellant's state court  sentence was imposed             in April of 1993,  prior to his August 30,  1993, sentencing             on  the instant  offense.   Whether  his conduct  in selling                                              ____________________             4Appellant's  counsel, in  oral argument,  acknowledged that             his  brief  to this  Court  wrongly used  the  term "related             cases," referred to in section 4A1.2(a)(2) of the Sentencing             Guidelines, to refer to the relationship between Appellant's             prior  New Hampshire  sentence  and the  instant offense  of             violating  section  1326(b)(2).     8  U.S.C.    1326(b)(2).             Counsel acknowledged  that "related  cases," as used  in the             Guidelines,  refers  to   the  relationship  between   prior             sentences and  whether prior sentences should  be counted as             one sentence in a defendant's criminal history  and does not             govern  a court's  assessment  of whether  a prior  sentence             should  be viewed as part of the  instant offense.  See also                                                                 ___ ____             U.S. v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992); U.S. v.             ______________                                       _______             Walling, 936 F.2d 469, 471 (10th Cir. 1991).             _______                                        - 13 -                                         -13-             cocaine qualifies as  conduct that was  part of the  instant             offense  presents  an  issue  of first  impression  in  this             circuit.     Other  circuit  courts  of   appeal  that  have             considered the issue have decided the appropriate inquiry is             whether the "prior sentence" and the instant offense involve             conduct that is severable into two distinct offenses.   See,                                                                     ___             e.g.,  U.S.   v.  Beddow,   957  F.2d  1330,   1338-39  (6th             ____   _________________             Cir. 1992)(holding  that  defendant's  state conviction  for             carrying a  concealed weapon  was not  part  of the  instant             federal money laundering offense,  even though the concealed             weapon was  found  at the  time  of defendant's  arrest  for             attempting to  carry out  money laundering scheme);  U.S. v.                                                                  _______             Banashefski,  928 F.2d  349  (10th  Cir. 1991)(holding  that             ___________             defendant's state  court conviction for  possessing a stolen             car was severable from  federal offense of being a  felon in             possession of a  firearm, even though  firearm was found  in             car's trunk at time of  defendant's arrest for state  stolen             vehicle charge).                       Whether  or  not  the  "prior  sentence"  and  the             instant  offense  are  severable  entails   a  fact-specific             inquiry by the district  court.  To the extent  that factual             issues are involved, the district court's determinations are             reviewed  under  the  clearly erroneous  standard,  and "due                                        - 14 -                                         -14-             deference" is afforded to the "application of the guidelines             to the facts."   18  U.S.C.   3742(e).   Here, the  district             court based its findings  on the Government's arguments that             the only  relation between Appellant's drug  selling conduct             and his conduct in violating  section 1326(b)(2) is that the             former violation  set in motion  a chain  of events  whereby             federal agents  were able to  trace Appellant's fingerprints             to those of Radhame Troncoso  and the I.N.S. then  retrieved             his file,  which led to the determination that Appellant was             in the country in violation of 1326(b)(2).  Trial Transcript             at  30-31.    The  Government  argued  there  was  no  other             connection between the conduct  involved in the drug offense             and the  1326(b)(2)  violation especially  where  the  state             prosecutor  and  the United  States  Attorney  had to  prove             totally different  elements with  respect  to each  offense.             Id.    Based  on   these  arguments,  the  district  court's             ___             determination that Appellant's sentence for  selling cocaine             constituted a severable offense,  and a "prior sentence" for             the   purpose  of  computing  Appellant's  criminal  history             category, is not erroneous.                       The judgment of the district court is AFFIRMED.                                                              ________                                        - 15 -                                         -15-
