United States v. Lennon

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

6-16-2004

USA v. Lennon

Precedential or Non-Precedential: Precedential

Docket No. 02-4207

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PRECEDENTIAL Deputy United States Attorney for Policy

and Appeals

UNITED STATES COURT OF ROBERT A. ZAUZMER, Esq.

APPEALS FOR THE THIRD CIRCUIT Assistant United States Attorney, Senior

Appellate Counsel

LINWOOD C. WRIGHT, JR., Esq.

No. 02-4207 (Argued)

Assistant United States Attorney

Office of the United States Attorney

UNITED STATES OF AMERICA 615 Chestnut Street

Suite 1250

v. Philadelphia, PA 19106-4476

CHRISTINE ANNEMARIE LENNON, Counsel for Appellee

Christine A. Lennon, STEPHEN A. MORLEY, Esq. (Argued)

Appellant Morley, Surin & Griffin

325 Chestnut Street

Suite 1305-P

Philadelphia, PA 19106

On Appeal from the United States

District Court for the Eastern District of Counsel for Appellant

Pennsylvania

(Dist. Ct. No. 01-cr-00494-1)

District Judge: Honorable Ronald L.

Buckwalter OPINION

Argued: March 24, 2004 CHERTOFF, Circuit Judge.

Christine Lennon appeals a final

Before: ROTH, AMBRO and judgment of conviction and sentence

CHERTOFF, Circuit Judges. entered by the District Court. Lennon

pled guilty to being “found in the United

(Filed: June16, 2004 ) States, having knowingly and unlawfully

re-entered the United States” in violation

of 8 U.S.C. §§ 1326(a) and (b)(2).

PATRICK L. MEEHAN, Esq. Lennon claims that the District Court’s

United States Attorney sentencing analysis violated her rights

LAURIE MAGID, Esq. under the Constitution’s Ex Post Facto

1

clause. In part, this analysis turns on different Trooper’s vehicle with her car.2

defining the nature of the offense to which Lennon was sentenced to four years

Lennon pled. We have jurisdiction under imprisonment, but was paroled to INS

28 U.S.C. § 1291 and, for the reasons that custody for deportation due to her criminal

follow, we will affirm. activity.

I. Lennon was deported to her native

Jamaica on September 24, 1993. Eleven

Lennon entered the United States in

months after being deported, Lennon re-

1981 at the age of 17 as a lawful

entered the United States under the

permanent resident. She is a single mother

pseudonym Diedra Barlow. She neither

of three children, all American citizens by

applied for admission to the United States

birth. She has maintained a close

nor obtained the express consent of the

relationship with her children and has

Attorney General before she re-entered.

provided for them despite receiving no

See 8 U.S.C. § 1326(a).

support from their three biological

fathers.1 She also suffers from Graves’ Soon after her illegal re-entry,

disease, an autoimmune disorder. Lennon resumed her violations of the law.

She was convicted in 1996 of possession

Lennon’s means of providing for

with intent to distribute marijuana.3 That

herself and her children have not always

offense resulted in a sentence of sixty days

been legal. In 1983, at age nineteen and

imprisonment followed by three years

only two years after assuming legal

probation. Lennon also pled guilty to

permanent residency in the United States,

shoplifting three times in 1998, receiving

Lennon committed a shoplifting offense.

a probation sentence each of the last two

She was convicted in 1988 and received a

times. Additional shoplifting charges

$300 fine. That year, Lennon was also

charged with and convicted of violating

the Pennsylvania Controlled Substance 2

In the arrest leading to the present

Act, when drugs and drug paraphernalia charges, Lennon once again struck the

were found in her apartment. She served vehicle of her arresting officers. She was

28 months of her 27 to 53 month sentence. apprehended by the Immigration and

In 1992, she was convicted of aggravated Naturalization Service (INS) while in her

assault on a New Jersey State Trooper. vehicle. Upon seeing the approaching

Lennon led the Troopers on a high-speed agents, Lennon shifted her car into reverse

chase that reached speeds over 100 miles and struck the INS vehicle that was parked

per hour and ended when she struck a behind her and intended to block her

escape.

1 3

The father of Lennon’s second Lennon pled nolo contendere in

child, Ashley Esplante, was murdered in Los Angeles, California, Superior Court.

Philadelphia in 1993.

2

remain pending against her in Cherry Hill, apprehension in 2001. That being so, the

New Jersey; Upper Merion Township, Government advocated including as

Pennsylvania; and Springfield Township, criminal history enhancements two of

Pennsylvania.4 Grand larceny and grand Lennon's crimes that “occurred” for

theft charges remain pending against her criminal history purposes fewer than ten

in, respectively, Orange County and Palm years before her 1994 re-entry date but

Beach County, Florida. more than ten years before the date in

2001 on which she was “found,” in the

Lennon eventually came to the

sense of being actually apprehended.

attention of INS officials as a result of an

anonymous tip and was apprehended on Lennon also argued that, whatever

July 7, 2001. She was indicted for, and crime she was charged with, the 1993

pled guilty to, being “found in the United Sentencing Guidelines should apply

States, having knowingly and unlawfully because her crime was completed upon her

re-entered the United States” in violation illegal re-entry in 1994. The Government

of 8 U.S.C. §§ 1326(a) and (b)(2) disagreed, pointing out that Section 1326

(hereinafter “Section 1326"). J.A. at 32. enumerates being “found in” as a criminal

Section 1326(a) contains three separate offense that is distinct from unlawful re-

offenses, phrased in the disjunctive: (1) entry. The Government argued that

illegal re-entry, (2) attempted illegal re- because her “found in” violation was

entry, and (3) being found illegally in the continuing, it was “committed” at the time

United States. See United States v. she re-entered through the date when she

DiSantillo, 615 F.2d 128, 134 (3d Cir. came to the attention of INS officials in

1980). 2001. Under that theory, the 1993 version

of the Guidelines was inapplicable.

At sentencing, Lennon contended

that the indictment ambiguously charged In the alternative, Lennon argued

her both with illegal re-entry, and with that the District Court should use the

being illegally “found in” the United November 2000 version of the

States. The Government asserted that that Guidelines—those in effect on the date

Lennon was charged only with the “found she was apprehended by INS

in” charge of Section 1326(a) and officials—rather than the November 2001

contended that such a violation is a version of the Guidelines—those in effect

continuing one, starting on the date (or on the date she was sentenced. The

approximate date) of her actual re-entry in Government contended that use of the

1994 and running through her November 2001 Guidelines was

appropriate and gave rise to no Ex Post

Facto issue.

4

Lennon was also charged with In imposing sentence, the District

shoplifting in 1989 but the charges were Court first held that Lennon’s crime was

dismissed.

3

committed on the date she was 57 months imprisonment. Lennon timely

“found”—thus falling under the “found appealed and maintains that the District

in” prong of Section 1326. The District Court violated her rights under the

Court looked to the November 2001 Constitution’s Ex Post Facto clause.

Guidelines, Section 2L1.2, to find

We exercise plenary review over

Lennon's base offense level to be 8. The

the District Court’s interpretation of the

District Court then applied the 16 point

Sentencing Guidelines and constitutional

enhancement in Section

questions. See United States v. Cicirello,

2L1.2(b)(1)(A)—based either on Lennon's

301 F.3d 135, 137 (3d Cir. 2002); United

aggravated assault convictio n

States v. Spinello, 265 F.3d 150, 153 (3d

(2L1.2(b)(1)(A)(ii)) or her possession with

Cir. 2001); United States v. Figueroa, 105

intent to dis tribute conv iction

F.3d 874, 875-76 (3d Cir. 1997). We

(2L1.2(b)(1)(A)(i)). Next, the District

review the District Court’s factual

Court reduced her offense level by three

findings for clear error, see Cicirello, 301

points for acceptance of responsibility

F.3d at 137, and the District Court’s

under Section 3E1.1 for a total offense

application of those facts to the Guidelines

level of 21.

for an abuse of discretion. See Buford v.

Finally, the District Court looked to United States, 532 U.S. 59, 62-66 (2001);

Lennon's extensive criminal history in United States v. Zats, 298 F.3d 182, 185

order to assign her a criminal history (3d Cir. 2002). In this context, we

score. The District Court did consider consider each of Lennon’s claims in turn.

under Section 4A1.2(e) those of Lennon’s

II.

offenses that occurred more than ten years

before her 2001 “found” date—implicitly The Ex Post Facto clause provides:

holding that “found in” violations are “No Bill of Attainder or ex post facto Law

continuing crimes—and assigned her four shall be passed.” U.S. CONST . art. I, § 9,

criminal history points for those offenses. cl. 3; see also U.S. CONST . art. I, § 10, cl.

The District Court assigned an additional 1. A law does not run afoul of the Ex Post

8 points under Section 4A1.2(e) for those Facto clause unless it retroactively “alters

of Lennon’s crimes that occurred within the definition of criminal conduct or

ten years before her “found” date. The increases the penalty by which a crime is

District Court designated a total criminal punishable.” Cal. Dep’t of Corr. v.

history category of V. The District Court Morales, 514 U.S. 499, 506 n.3 (1995);

determined, however, that this criminal see also, e.g., Lynce v. Mathis, 519 U.S.

history was overstated, and reduced it to a 433, 440-41 (1997) (citing Calder v. Bull,

category IV, making her sentencing range 3 U.S. (Dall.) 386, 390 (1798)); United

57-71 months. See U.S. SENTENCING States v. Brady, 88 F.3d 225, 227 (3d Cir.

GUIDELINES MANUAL § 4A1.3 (2001). 1996) (citing Cummings v. Missouri, 71

The District Court imposed a sentence of U.S. (4 Wall.) 227, 326-26 (1866)). The

4

Sentencing Guidelines—along with all 2001 Guidelines.5

statutes that impose or dictate

The key to this argument is

sentence—are, of course, subject to the Ex

Lennon’s claim that the Section 1326

Post Facto clause. See Miller v. Florida,

violation to which she pled guilty was

482 U.S. 423, 429-35 (1987); United

committed in 1994, when she illegally re-

States v. Kopp, 951 F.2d 521, 526 (3d Cir.

entered the United States and when the

1991); see also U.S. SENTEN CING

1993 Guidelines were in force. First,

GUIDELINES MANUAL § 1B1.11 (2003).

Lennon asserts that the indictment is

But a District Court is entitled to employ

the Guidelines in place at the time of

sentencing unless doing so would expose 5

Lennon argues that none of the

the defendant to harsher penalties than enhancements in the 1994 Guidelines

were in effect at the time the crime was would have applied to her. She contends

committed. See United States v. Corrado, that her New Jersey aggravated assault

53 F.3d 620, 622-23 (3d Cir. 1995). In conviction would not have met the

order to establish, therefore, that the Ex definition of “aggravated felony” under

Post Facto clause requires the application the 1993 Guidelines because it was not “a

of an earlier version of the Sentencing crime of violence . . . for which the term

Guidelines, a defendant must show that of imprisonment imposed . . . is at least 5

the crime was committed at a time that the years.” U.S. SENTENCING GUIDELINES §

earlier Guidelines version was in force and 2L1.2, cmt. n.7 (1993); 8 U.S.C. §

that the earlier version is more favorable 1101(a)(43)(F) (1995). She concludes

to him or her. See United States v. that, because none of the other

Audinot, 901 F.2d 1201, 1202 (3d Cir. enhancements would have applied to her,

1990). her total offense level would have equaled

A. the base offense level of 8. Neither party

addressed whether Lennon’s 1988

Lennon first contends that the Pennsylvania controlled substance

version of the Guidelines in force on the conviction would have qualified as an

date of her 1994 re-entry—the 1993 aggravated felony under subsection

Guidelines—should have been used to 1101(a)(43)(B) as “illicit trafficking in a

calculate her sentence. Those guidelines controlled substance,” making the 1993

would have been more favorable to her G u i d e l i n e s’ a g g r a v a te d f e l o ny

because, she argues, she would have enhancement nonetheless applicable to

faced—before a reduction for acceptance her. Because it does not change our

of responsibility—a total offense level of analysis, we assume that her 1988

8, rather than the level 24 the District Pennsylvania controlled substance

Court calculated under the November conviction would not have qualified as an

“aggravated felony” within the meaning of

the 1993 Guidelines.

5

ambiguously worded to charge both the we need to discuss at some length.

“re-entry” prong and the “found in” prong

In DiSantillo, the defendant had

of Section 1326.6 She invokes the “rule of

been arrested and deported in 1962. Id. at

lenity,” see United States v. Lainer, 520

130. He re-entered the United States in

U.S. 259, 266 (1997), and argues that the

1970, under his own name and on an

crime with which she is charged should be

immigrant visa issued by the American

deemed to be illegal re-entry in 1994

Consul General in Italy. But because of

because the 1993 Guidelines are more

his earlier deportation, that visa was

lenient than the 2001 Guidelines under

improper and DiSantillo’s re-entry was in

which she was sentenced.

violation of Section 1326. Id.

This is not a reasonable application

DiSantillo was not interviewed by

of the rule of lenity. Notwithstanding the

INS agents until 1976 and not

reference to Lennon’s “re-entry,” the

indicted—under Section 1326's “found in”

indictment clearly charges her under the

prong—until 1979. Id. He argued that the

“found in” prong of Section 1326. See

five-year statute of limitations for his

United States v. Whittaker, 999 F.2d 38,

“found in” violation began to run on his

40-41 (2d Cir. 1993) (concluding that

re-entry into the United States and expired

alien’s crime occurred for sentencing

in 1975. Id. at 132. The Government

purposes on alien’s “found” date even

argued that DiSantillo’s offense was a

though the indictment charged all three

continuing one, “effectively tolling the

prongs of Section 1326).

statute of limitations for as long as the

Next, though somewhat obliquely, alien remain[ed] illegally in the country.”

Lennon argues that even if her violation Id. at 132.

was being “found in” the United States

We looked to the plain language of

illegally, that offense occurred as a matter

Section 1326 and held that the statute of

of law at the time she illegally crossed into

limitations for a “found in” violation

the United States in 1994 through a

begins on the date the alien comes to the

recognized port of entry. This argument is

attention of immigration authorities. Id. at

on somewhat stronger footing, flowing

from this Court’s decision in United States

v. DiSantillo, 615 F.2d at 134-36,7 which the statute of limitations has run on her

“found in” violation. See DiSantillo, 615

6

Lennon does not assert, however, F.2d at 134-36. But Lennon

that the ambiguity in the indictment unquestionably waived any argument she

renders it duplicitous. may have had based on the statute of

limitations by failing to raise that defense

7

We note that Lennon’s argument before the District Court. Accordingly,

could be construed as a means of we voice no opinion with respect to that

contending, by way of the back door, that defense.

6

135. Central to our holding was the fact with “knowledge” of an alien’s presence

that DiSantillo had passed through a in the United States—does not extend to a

recognized port of entry pursuant to an case such as this, where Lennon

otherwise valid American-issued visa affirmatively concealed her identity. To

under his own name. That being so, his hold otherwise would actually favor the

re-entry was not surreptitious, and illegal entrants who affirmatively conceal

immigration authorities had sufficient their identities over those who honestly

notice of that re-entry to start the running use their own names.8

of the five-year statute of limitations for

his “found in” offense. We contrasted, in

a dictum, DiSantillo’s case with the 8

The Government urges that the

example of an alien who enters the United crime of being “found in” the United

States surreptitiously. Id. at 134-36. States is a continuing offense, just in the

Under those circumstances, we reasoned, same way that a conspiracy is. See, e.g.,

Congress did not intend the statute of United States v. Jake, 281 F.3d 123, 129

limitations for “found in” violations to n.6 (3d Cir. 2002). The argument has

begin running against the Government on force; the passage of time does not give

the date of the alien’s illegal re-entry into rise to a de facto amnesty that legalizes an

the United States. Rather, as in the case of unlawful alien’s presence. But the

DiSantillo’s non-surreptitious re-entry, the question of whether “found in” violations

statute of limitations only begins to run are continuing crimes was addressed, to a

once the Government is on notice of the limited extent, in our holding in

alien’s illegal presence in the United DiSantillo. 615 F.2d at 134-36. In the

States. context of that case, we held that the

In short, DiSantillo held that illegal “found in” prong did not codify a

re-entry begins, for statute of limitations continuing crime. Id. Since that time,

purposes, when the alien presents himself numerous other courts have taken

non-surreptitiously (i.e., using his own positions that are, to varying degrees, to

name) at an open point of entry even the contrary. See United States v. Ruiz-

though immigration personnel failed to Gea, 340 F.3d 1181, 1189 (10th Cir.

react. That makes some sense because the 2003); United States v. Mendez-Cruz, 329

Government has sufficient notice of the F.3d 885, 889 (D.C. Cir. 2003); United

alien’s presence in the United States to States v. Lopez-Flores, 275 F.3d 661, 663

bear the burden of the running of the (7th Cir. 2001); United States v. Mendez-

statute of limitations against it. Id. Here, Casillas, 272 F.3d 1199, 1203-05 (9th Cir.

however, Lennon admits that she used an 2001); United States v. Ruelas-Arreguin,

alias when she crossed into the United 219 F.3d 1056, 1061 (9th Cir. 2000);

States. The logic of DiSantillo—that United States v. Reyes-Nava, 169 F.3d

immigration authorities should be imputed 278, 279-80 (5th Cir. 1999)); United

States v. Diaz-Diaz, 135 F.3d 572, 575

7

This reading of DiSantillo is any error by the District Court in this

consistent with the decisions of other respect was harmless.9 Lennon concedes

courts, holding that the offense of being that, excluding her pre-1991 crimes, her

“found in” the United States illegally is criminal history score was a Level IV.

“committed” when the alien comes to the The District Court here ultimately

affirmative attention of INS officials. See sentenced her based on a criminal history

United States v. Rodriguez, 26 F.3d 4, 8 of Level IV, arriving at the same

(1st Cir. 1994); United States v. Gonzales, sentencing range as would have resulted

988 F.2d 16, 18 (5th Cir. 1993); had the District Court excluded Lennon’s

Whittaker, 999 F.2d at 40-42. Indeed, in pre-1991 crimes.10 Thus, any error by the

Whittaker, the Second Circuit interpreted

Section 1326 as we do here: Where an 9

alien unlawfully enters with a fictitious The Government argues that there

name, even through a recognized port of is no error because Lennon’s offense was

entry, he is “found in” the United States a continuing one, lasting from 1994

when actually discovered. Whittaker, 999 through 2001. This is arguably

F.2d at 42. Accordingly, Lennon’s Section inconsistent with DiSantillo, but we need

1326 violation was “committed” when she not reach the question.

was apprehended by INS officials in 2001. 10

At oral argument, Lennon’s

Finally, Lennon observes that a counsel suggested that the District Court’s

logical implication of a finding that her use of the older crimes might be error even

crime was “committed” in 2001 is that her though the District Court applied the

pre-1991 crimes should not have been lower criminal history level. Lennon’s

used as sentencing factors, since they counsel speculated that the District Court

“occurred” for sentencing purposes before might have been inclined to reduce the

the Guidelines’ ten year look-back period criminal history category irrespective of

as measured from her “found” date. But whether that history reflected her pre-1991

crimes. All things being equal, the

argument runs, if the District Court had

(8th Cir. 1998); United States v. not included her pre-1991 crimes but still

Castrillon-Gonzales, 77 F.3d 403, 406 found her criminal history to be

(11th Cir. 1996); see also United States v. overstated, her sentencing range—and

Almendarez, 1 Fed. Appx. 234, (4th Cir. presumably her sentence—would have

2001) (unpublished per curiam). But see been that much lower. Apart from being

United States v. Rivera-Ventura, 72 F.3d pure speculation, Lennon’s counsel’s

277, 280-82 (2d Cir. 1995). Perhaps this argument was not advanced in her briefs.

should cause a re-examination of our For the same reason that we will not

holding in DiSantillo. But we need not consider an argument minted at the reply

confront the continued viability of brief stage, we will not consider an

DiSantillo in this case. argument made by counsel for the first

8

District Court in initially considering Aggravated felonies that

Lennon’s pre-1991 crimes for criminal trigger the adjustment from

history purposes was harmless. See subsection (b)(1)(A) vary

United States v. Knight, 266 F.3d 203, widely. If subsection

208 (3d Cir. 2001) (noting that a (b)(1)(A) applies, and (A)

sentencing error need not be remanded if the defendant has

“the record shows that the sentence was previously been convicted

unaffected by the error.”); United States v. of only one felony offense;

Thayer, 201 F.3d 214, 229 (3d Cir. 1999). (B) such offense was not a

crime of violence or

B.

firearms offense; and (C)

The only remaining question, then, the term of imprisonment

is whether the District Court should have imposed for such offense

used the November 2000, rather than the did not exceed one year, a

November 2001, version of the downward departure may be

Guidelines. warranted based on the

seriousness of the

Lennon argues that the November

aggravated felony.

2000 version of the Guidelines was more

favorable to her because the November

2001 Guidelines eliminated the downward

U.S. SENTENCING GUIDELINES MANUAL §

departure provision under Section 2L1.1.

2L1.2 cmt. 5 (November 2000). Lennon

Compare U.S. SENTENCING GUIDELINES

arguably fails each of the Comment’s

MANUAL § 2L1.2 & cmt. 5 (November

three conditions. Contrary to condition

2000) with U.S. SENTENCING GUIDELINES

(A), she had been convicted of two

MANUAL § 2L1.2 (November 2001).

felonies—aggravated assault in New

Because the District Court used the

Jersey and violation of the Pennsylvania

November 2001 Guidelines, she was

Controlled Substance Act. Contrary to

denied the opportunity for that additional

condition (B), her aggravated assault

departure.

offense probably qualified as an

As the Government points out, “aggravated felony” as defined under the

Lennon’s criminal record would have November 2000 Guidelines. 11 And

prevented her from being considered for a contrary to condition (C), her New Jersey

downward departure under the November aggravated assault conviction carried a

2000 Guidelines. Section 2L1.2, comment sentence of longer than one year.

5 of the November 2000 Guidelines states:

11

See U.S. S EN TEN CIN G

time at oral argument. See Nagle v. GUIDELINES MANUAL § 4B1.2 cmt. n.1

Alspach, 8 F.3d 141, 144 (3d Cir. 1993) . (November 2000).

9

Since the downward departure

provision was inapplicable to her, the

November 2000 version of the Guidelines

was no more favorable to Lennon than

was the November 2001 version. That

being so, the Ex Post Facto clause did not

prevent her from being sentenced under

the November 2001 Guidelines—the

Guidelines in force at the time of her

sentencing—and the District Court did not

err by doing so.

III.

For the foregoing reasons, we will

affirm the judgment of the District Court.

10