Petitioners Brief — Almendarez-Torres v. United States

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\5) JUN 16 1997

OFEIGE OF THE CLERK

No. 96-6839

In The

Supreme Court of the United States

October Term, 1996

on:

HUGO ROMAN ALMENDAREZ-TORRES,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

}

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR PETITIONER

Peter Fieury*

TmmotHy CROooKs

Assistant Federal Public Defenders

600 Texas Street, Suite 100

Fort Worth, TX 76102-4612

(817) 978-2753

Counsel for Petitioner

“Counsel of Record

| COCKLE LAW BRIEF PRINTING CO.. (800) 225-964

OR 283

QUESTIONS PRESENTED

Whether Title 8, Section 1326(b), United States Code,

defines offenses separate from the offense defined in

Section 1326(a), so that an alien defendant's previous

conviction or convictions must be alleged in the

indictment and proved at trial beyond a reasonable

doubt before an enhanced sentence may be imposed?

Whether a sentencing court violates due process by

determining that Title 8, Section 1326(b)(2) is not a

separate offense from Title 8, Section 1326(a), but

rather merely a sentencing enhancement of that

offense?

LIST OF PARTIES

1. United States of America

2. Hugo Roman Almendarez-Torres

Page

TABLE OF AUTHORITIES ..........ccscceseseecces vi

EE 1

EEE Se 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

STATUTORY PROVISIONS INVOLVED............. 2

TT CPUC Gh ebeeebsescceecceseccccccececees 2

SUMMARY OF ARGUMENT................0000005 3

SE Be ME GUE bo dU Sees bc cd ec cdececcccccccccs 9

I. AS A MATTER OF STATUTORY CONSTRUC-

iii

TABLE OF CONTENTS

TION, 8 U.S.C. § 1326(b)(1) AND (b)(2) MUST

BE READ AS CREATING SEPARATE AND

DISTINCT OFFENSES FROM THE OFFENSE

DESCRIBED IN 8 U.S.C. § 1326(a), RATHER

THAN SENTENCING ENHANCEMENTS OF

THE OFFENSE DESCRIBED IN § 1326(a) ....

B. The m= and Structure of 8 U.S.C.

- ly Viewed in Light of the

tutory Evolution of That Statute by Sub-

sequent Congressional Amendments -

Compel the Conclusion That Congress

Intended That 8 U.S.C. § 1326(b)(1) and

(b)(2) Be New, Separate Offenses, Rather

Than Just Sentencing Enhancements of the

Offense Described in § 1326(a)...........

1. The 1988 Amendments...............

TABLE OF CONTENTS

3. The 1994 and 1996 Amendments .....

C. Analysis of the Language and Structure of

8 U.S.C. § 1326 in Light of the Factors

Mentioned by This Court in Garrett v.

United States Not Change the Conclu-

heh , ws coccemeeseweeeees

1. Does the Statute Predicate Punishment

upon Conviction under Another Sec-

GND cc ccceccccccceccesceccopendessex

2. Does the Statute Multiply the Penalty

Received under Another Section? ....

3. Does the Statute Provide Guidelines

for the Sentencing Hearing?..........

4. Is the Statute Titled as a Sentencing

PUOUEIOEE < ob dooce cccccctséebtcctec.

Even If It Is Permissible to Consult Legis-

lative History to Clarify a Textually

Ambiguous Statute, the Legislative His-

tory Surrounding the Provisions at Issue

Here is Not Helpful.....................

At Best, the Statute in Question is at Least

Ambiguous; and, in that Case, the Rule of

Lenity Requires that § 1326(b)(1) and (b)(2)

Be Read as Creating New Offenses ......

TABLE OF CONTENTS - Continued

Page

F. Construing § 1326(b)(1) and (b)(2) as Inde-

t Rather Than Sen

weemy 5 em Is bre eal With the

Canon tutory Requiring

Courts to Choose a Plausible Construction

Which Avoids Serious Constitutional Prob-

Il. THE CONSTITUTION REQUIRES THAT, IN A

FEDERAL CASE, WHENEVER THE MAXIMUM

IMPRISONMENT RANGE IS INCREASE

BASED ON A FACT, THAT FACT MUST

ALLEGED IN THE INDICTMENT AND

PROVED BEYOND A REASONABLE DOUBT IN

BBE IN 0 c enc cacestcbstocsgcecdvcccccs 30

Bae Pn cteccccccspsccusevecccsccccace 30

B. The Punishment Defines the Crime ........ 31

C. The Common Law and State and Federal

PP eEAbwescccctesedcussdesah sccccccecs 33

D. The Supreme Court Authority ............. 39

GEE wccccdccsvcceviabotedevesdsisecccsct 50

BS OD occcccccccccccccvcvccccvcescoccvccees A-1

SE ob dec voce cdccctcbeseccccesccevecetsss B-1

TABLE OF AUTHORITIES

Page

Cases

Addington v. Texas, 441 U.S. 418 (1979) ... 32, 33, 44, 45

Baldwin v. New York, 399 U.S. 66 (1970) ............. 32

Chandler v. Fretag, 348 U.S. 3 (1952) ............6045. 40

Chaunt v. United States, 364 U.S. 350 (1960).......... 33

Chewning v. Cunningham, 368 U.S. 443 (1962) ..... 40, 41

Communications Workers of America v. Beck, 487 U.S.

FED CRE ao cc cdedocccdadcodcdéshcicedicnsesses 16, 18

Concrete Pipe and Products of California, Inc. v. Con-

struction Laborers Pension Trust for Southern Cali-

fornia, 508 U.S. 602 (1993) ...... 2.2.2 cece cece cence 29

Cosgriff v. Craig, 195 N.Y. 190, 88 N.E. 38 (1909)..... 36

Davis v. United States, 160 U.S. 469 (1895)........ 48, 49

Duncan v. Louisiana, 391 U.S. 145 (1968)............. 32

Evans v. State, 150 Ind. 651, 50 N.E. 820 (1898)...... 37

Ex parte Wilson, 114 U.S. 417 (1885)................. 32

Frank v. United States, 395 U.S. 147 (1969)........ 31, 32

Garrett v. United States, 471 U.S. 773 (1985)...... passim

Hamling v. United States, 418 U.S. 87 (1974).......... 31

Hillsboro Nat’l Bank v. CIR, 460 U.S. 370 (1983) ...16, 18 ©

Hughey v. United States, 495 U.S. 411 (1990) ......... 13

Hurtado v. California, 110 U.S. 516 (1884) ............ 33

In re Winship, 397 U.S. 358 (1970)............ 31, 34, 44

Ladner v. United States, 358 U.S. 169 (1958).......... 28

vii

TABLE OF AUTHORITIES - Continued

Page

Leland v. Oregon, 343 U.S. 790 (1952) ........ 666.000. 49

Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228 (1924) .... 37

Long v. State, 36 Tex. 6 (1871).......... 0 ccc eees 36, 37

Lorillard v. Pons, 434 U.S. 575 (1978) ................ 22

Maine v. McClay, 146 Me. 104, 78 A.2d 347 (1951)... . 36

Massey v. United States, 281 F. 293 (8th Cir. 1922) .... 38

McMillan v. Pennsylvania, 477 U.S. 79 (1986)

CeUseeressecdesecoosoncesectecccceces 24, 42, 45, 46, 47

DE Abhi deddebstdacdedecanstccsddicccedbtocesess 34

Mullaney v. Wilbur, 421 U.S. 684 (1975)........... 42, 43

Patterson v. New York, 432 U.S. 197 (1977) ....42, 43, 44

People v. Brennan, 242 N.Y.S. 692 (1930).............. 36

People v. Casey, 399 Ill. 374, 77 N.E.2d 812 (1948) .... 37

People v. McDonald, 233 Mich. 98,.206 N.W. 516

PEED 6 Covcncccceccncesccesvenecccccccesesoecceees 36

People v. Sickles, 156 N.Y. 541, 51 N.E. 288 (1898) ...34, 35

Powell v. Alabama, 287 U.S. 45 (1932)................ 40

Red Lion Broadcasting Co, Inc. v. FCC, 395 U.S. 367

PD bacnsecngabeudochsonecachsovencccesesceccces 16

Riggins v. Stynchcombe, 231 Ga. 589, 203 S.E.2d 208

SE oc ccccceunepeeennens tune cup iacugscogncepecces 37

Robbins v. State, 219 Ark. 376, 242 S.W.2d 640

| ERPREAPPPTTTIT TITTLE TTL Teele 37

viii

TABLE OF AUTHORITIES - Continued

Page

Roberson v. State, 362 P.2d 1115 (Okla. Crim. App.

Bc o ccccevccccecnseesneeseosounesessehessonesel 37

Schick v. United States, 195 U.S. 65 (1903)......... 32, 34

Schooner Hoppet and Cargo v. United States, 11 U.S.

BD Ge 9.0000 ccdeseen cone codec déiececnte 39, 40, 48

Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S.

SOEs Eddocicodcsacedascebabescsordecadeanesscs 16

Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479

SERED 0 cccdcbdcccdsodecccccebeéeedboadbbcovcbobetes 21

Simpson v. United States, 435 U.S. 6 (1978)........... 25

Singer v. United States, 278 F. 415 (3rd Cir. 1922),

cert. denied, 258 U.S. 620 (1922) ...........0005- 38, 39

Smith v. United States, 508 U.S. 223 (1993)........... 28

Specht v. Patterson, 386 U.S. 605 (1967) ........... 41, 42

State v. Cobb, 2 Ariz.App. 71, 406 P.2d 421 (1965) .... 37

State v. Eichler, 248 lowa 1267, 83 N.W.2d 576

SED ccccdecccasedecéssuvsensendadeeebesoteccoces 37

State v. Furth, 5 Wash.2d 1, 104 P.2d 925 (1940) ..... 37

State v. Martin, 162 Wis.2d 883, 470 N.W.2d 900

1. | PRPPPPPPPTTITTTITITITITITITITTiTTi rT irre 37

State v. Pennye, 102 Ariz. 207, 427 P.2d 525 (1967) .... 37

State v. Ruble, 77 N.D. 79, 40 N.W.2d 794 (1950)..... 37

State v. Smith, 106 N.W. 187 (Iowa 1906)............ 37

State v. Waterhouse, 209 Or. 424, 307 P.2d 327 (1957) .... 37

TABLE OF AUTHORITIES - Continued

Page

United States v. Almendarez-Torres, No. 96-10254,

slip op. (Sth Cir. Aug. 22, 1996) .......... 6.6 c cee 4

United States v. Arias-Granados, 941 F.2d 996 (9th

Dt MD oh actensdhh debhaddieny séndacces daddse vee 10

United States v. Blannon, 836 F.2d 843 (4th Cir.),

cert. denied, 486 U.S. 1010 (1988) .................. 11

United States v. Brewer, 841 F.2d 667 (6th Cir. 1988),

rev'd in relevant part on panel reh \ ey F.2d 1319

(6th Cir. 1988), cert. denied, 488 U.S. 946 (1988).... 12

United States v. Brewer, 853 F.2d 1319 (6th Cir.),

cert. denied, 488 U.S. 946 (1988)............ 11, 12, 14

United States v. Campos-Martinez, 976 F.2d 589 (9th

Sik, Ss LiMais ede dundeddresbeieasecccess 10, 12, 27

United States v. Carll, 105 U.S. 611 (1882)............ 31

United States v. Cole, 32 F.3d 16 (2nd Cir.), cert.

denied, 513 U.S. 993 (1994) ......... 6. ccc cece eeee 10

United States v. Crawford, 18 F.3d 1173 (4th Cir.),

cert. denied, 513 U.S. 860 (1994) ..............0055. 10

United States v. Davis, 801 F.2d 754 (5th Cir. 1986)

Be I ae Ty Fe ee 11, 12, 20, 22

United States v. DeLeon-Rodriguez, 70 F.3d 764 (3rd

Cir. 1995), cert. denied, _. U.S. __, 116 S.Ct.

EE Pe rE Pr ry rere Ter 10

U’ ited States v. Dickerson, 857 F.2d 414 (7th Cir.

1988), cert. denied, 490 U.S. 1023 (1989)............ 11

United States v. Eaton, 144 U.S. 677 (1892)........... 31

United States v. Evans, 333 U.S. 483 (1948)........... 31

United States v. Forbes, 16 F.3d 1294 (1st Cir. 1994) . . passim

TABLE OF AUTHORITIES - Continued

Page

United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310

CRORE occ cccodeo rec ddweWecshednde cekdeCebesees ses 31

United States v. Gonzalez-Medina, 976 F.2d 570 (9th

GAD. BEGED cccovecpcnnisatnececeusetuestasdverss cvs 10

United States v. Granderson, 511 U.S. 39 (1994)....... 28

United States v. Gregg, 803 F.2d 568 (10th Cir. 1986),

cert. denied, 480 U.S. 920 (1987) ...........0..000e. 11

United States v. Haggerty, 85 F.3d 403 (8th Cir.

SOPEDs on b.05 on a00edees dees COGN cue shin apepentes dda 10

United States v. Hasting, 461 U.S. 499 (1983) ......... 49

United States v. Hawkins, 811 F.2d 210 (3rd Cir.),

cert. denied, 484 U.S. 833 (1987) ........ 11, 12, 14, 15

United States v. Jackson, 824 F.2d 21 (D.C. Cir.

1987), cert. denied, 484 U.S. 1013 (1988)..... 11, 15, 22

United States v. Jin Fuey Moy, 241 U.S. 394 (1916) .... 29

United States v. LaBonte, __ U.S. __, 117 S.Ct.

1673, __, 1997 WL 273644 (May 27, 1997) ........ 19

United States v. LaFranca, 282 U.S. 568 (1931)........ 29

United States v. Mufioz-Cerna, 47 F.3d 207 (7th Cir.

Bk 50 000cencéanetnsstekesedniientiines sc 10

United States v. Oliver, 60 F.3d 547 (9th Cir. 1995) .... 21

United States v. Palacios-Casquete, 55 F.3d 557 (11th

Cir. 1995), cert. denied, __ U.S. ___, 116 S.Ct. 927

GIP od dnc vecnsontdeceveseisdecdpabiaeessns cence 10

TABLE OF AUTHORITIES - Continued

Page

United States v. Rumney, 867 F.2d 714 (lst Cir.),

cert. denied, 491 U.S. 908 (1989)........ 11, 12, 14, 22

United States v. Rush, 840 F.2d 574 (8th Cir.) (en

banc), cert. denied, 487 U.S. 1238 (1988) and cert.

denied, 487 U.S. 1239 (1988)............ 11, 12, 22, 23

United States v. Ryan, 9 F.3d 660 (8th Cir. 1993),

aff'd on reh’g en banc, 41 F.3d 361 (8th Cir. 1994)

(en banc), cert. denied, __ U.S. __, 115 S.Ct. 1793

id stein bkebebAd Kadhes hecebedeseverce convoc 14

United States v. Turkette, 452 U.S. 576 (1981)......... 13

United States v. Valdez, 103 F.3d 95 (10th Cir. 1996) .... 10

United States v. Vasquez-Olvera, 999 F.2d 943 (5th .

Cir. 1993), cert. denied, 510 U.S. 1076 (1994) ... passim

United States v. Vieira-Candelario, 811 FSupp. 762

(D.R.I. 1993), overruled in relevant part by United

States v Forbes, 16 F.3d 1294 (ist Cir. 1994)... 10, 11, 26

United States v. West, 826 F.2d 909 (9th Cir. 1987)...11, 14

United States ex rel. Attorney General v. Delaware &

Hudson Co., 213 U.S. 366 (1909)...........- 0 eee eee 29

Victor v. Nebraska, __U.S.___, 114 S.Ct. 1239 (1994) .... 49

Woodby v. INd, 385 U.S. 276 (1966) ........ 6. eee ee eee 33

CONSTITUTIONAL PROVISIONS

CRS. Chet. Wee: occ csccccvectesicugee 1, 7, 30, 33

CE CO, BE, WE co cescecusccdsceugaeeés 3 F

xii

TABLE OF AUTHORITIES - Continued

Page

RuLgs

. See | 8 Breer rer 47

STATUTES

BD Pe We Ms ne be vet ccnccdcsese ccncewesdusceasens 25

DS PR Be Sh ake nscessades cdnndssccutctbucsaneen 12

Dies Be EE ces ccsvccescscsevenpeonbensanel passim

ee ee 9, 17

Dy Be I ocsucscccdesécntesnudacioun passim

DO RR BS ch cctcdcvctccvedccevedseuus passim

DB es ie ng ccc ccoccadoscccvense 5, 17, 18, 19

DS tee Oe nn ncdcoccavccscassscas 5, 17, 18, 19

Pe Oe Sc ectccccctccccudsgeauvecau 5, 18, 21

Sp Py he O08 wots scene dei edastiteccecdbetcue 25

SP es Rs ccc evensrcenvaneiescccnccetune audi 14

Se CE Gotnccachesésunedsestussececeseeneds 25

SD SS EEE Va SNC 6ds Kearns Kicwecnsecceuesseces 25

OD es Be ED 0 tN Sed dwdtcectecestecceinedsntees 21

OP Be Suis shah beudcndsusdctscedscckessnen 15

OD as A BH FE occ cccscucnccsteedoucends 11

SP es BE Gaekns edevedccadccusentsechhassccend 48

SP Ge OF UE Gen Sddvcvecncdécccuccucancessdeéocau 21

xiii

TABLE OF AUTHORITIES - Continued

Page

ey er RA 660s diic dud Keuwevdderedeevecdccéeszes 15

ID cre chG ae cdstehdodeicheesecetcseas 21

A non cnaceuduteenaspeaeesosennadects 16

EE on 6 deb ddbdbactehaeedcdecesosceceds 1

Ch. 477, Title IL, ch. 8, § 275, 66 Stat. 229 (June 27,

ti ei cin sak ded Wbebneeds haseddebecseccs 13, 14

Pub. L. 100-690, Title VII, § 7345(a), 102 Stat. 4471

id aes cid aicereueheeeetoeene 14

Pub. L. 101-649, Title V, § 543(b)(3), 104 Stat. 5059

ee OLS oe oa ee cube cnawseeeees 15

Pub. L. 103-322, Title XIII, § 130001(b), 108

Stat.2GZS Goept. 15, 1996). ......ccccccsccccccees 17, 24

Pub. L. 104-132, Title IV, §§ 401(c), 438(b), 441(a),

110 Stat. 1267, 1276, 1279 (Apr. 24, 1996)

TE ROSE EE INE AE Ee 17

Pub. L. 104-208, Div. C, Title III, §§ 305(b)(1)-(3),

308(d)(4)(J), 308(e)(1)(K), 308(e)(14)(A), 309, 110

Stat. SUGP Gept. SU, 1996). .....ccccccccccccec. 17, 25

Pub. L. 104-208, 110 Stat. 3009, § 334 (Sept. 30,

Ddchtn Jags («AMAR EM eee heabes dress denecess 19

OTHER AUTHORITIES

1 W. LaFave & A. Scott, Jr., Substantive Criminal

Ne ee nn 6 dees, etnieeeperdetedtees oe 31

OPINIONS BELOW

The opinion of the court of appeals (J.A. 18) was

originally unpublished, although the judgment was noted

at 96 F.3d 1443 (Table). The opinion has since been desig-

nated for publication and is to be reported at 113 F.3d

515, 1996 WL 887502. The judgment of the district court is

not reported.

JURISDICTION

The decision of the court of appeals (J.A. 18) was

announced on August 22, 1996. The petition for certiorari

was filed on November 20, 1996. Certiorari was granted

on March 31, 1997. (J.A. 22) Jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides, in pertinent part: “No person shall be held

to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War or

public danger; nor shall any person . . . be deprived of

life, liberty, or property, without due process of law.” U.S.

Const. amend. V.

The Sixth Amendment to the United States Constitu-

tion provides, in pertinent part: “In all criminal prosecu-

tions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury, . . . , and to be informed

of the nature and the cause of the accusation; ...” U.S.

Const. amend. VI.

STATUTORY PROVISIONS INVOLVED

The full text of the version of Section 1326 of Title 8,

United States Code, which was in effect on the date

Petitioner’s offense was alleged to have occurred is set

out in Appendix A to this Brief. The various sets of

amendments to Section 1326 are set out in Appendix B to

this brief, beginning at page B-1.!

STATEMENT

On September 12, 1995, the Petitioner, Hugo Roman

Almendarez-Torres, was charged in a single count indict-

ment with illegal reentry into the United States in viola-

tion of Title 8, United States Code, Section 1326.? (J.A. 3)

On December 1, 1995, Petitioner entered a plea of guilty

to the indictment. (J.A. 1)

1 With respect to these amendments, in each case deleted

text is lined through, and added text is indicated in boldface

type.

2 Particularly, Petitioner was charged with being found in

the United States on or about July 28, 1995, having reentered the

United States illegally (without the permission of the Attorney

General) at some time prior to that date, but subsequently to his

deportation on or about April 18, 1992. (J.A. 3)

Prior to sentencing, the Probation Office prepared a

presentence investigation report, which stated that the

maximum sentence for the offense to which Petitioner

had pleaded was 15 years imprisonment. Petitioner filed

written objections to the presentence investigation report,

urging that the offense to which he had pleaded guilty

was merely a “simple” illegal reentry after deportation,

as proscribed by Title 8, United States Code, Section

1326(a) - which carried a maximum penalty of only two

years imprisonment. At sentencing on March 1, 1996, the

district court overruled Petitioner’s objections, and pro-

ceeded to sentence Petitioner to, among other things, 85

months imprisonment in the custody of the Bureau of

Prisons. (J.A. 17)

The Petitioner timely appealed to the United States

Court of Appeals for the Fifth Circuit. On August 22,

1996, that court entered its opinion affirming the judg-

ment of conviction and sentence, relying on that court's

previous decision in United States v. Vasquez-Olvera, 999

F.2d 943 (5th Cir. 1993), cert. denied, 510 U.S. 1076 (1994).

(J.A. 18-19)

This Court granted certiorari on March 31, 1997. (J.A.

22)

SUMMARY OF ARGUMENT

Analysis of the language, structure, and legislative

history of § 1326 compels the conclusion that, in

§ 1326(b)(1) and (b)(2), Congress intended to create new

offenses, separate and distinct from the offense described

in § 1326(a), rather than sentencing enhancements of the

§ 1326(a) o '

A. decifing this question, the lower federal

courts have principally utilized two somewhat <i*ferent

approaches. The first of these is that used by the Fifth

Circuit in the precedent governing that court’s decision in

this case: namely, an analysis of the language and struc-

ture of § 1326 in light of four factors extracted from this

Court's decision in Garrett v. United States, 471 U.S. 773

(1985). The second approach is a broader-based analysis

of the language, structure, and legislative history of

§ 1326. Under either of these approaches, this Court

should find that Congress intended that § 1326(b)(1) and

(2) were to be new, independent offenses, rather than just

sentencing enhancements of the offense set out in

§ 1326(a).

B. The language and structure of § 1326 — partic-

ularly when viewed in light of the statutory evolution of

that provision - demonstrate Congress’s intent to make

§ 1326(b)(1) and (b)(2) separate offenses. When Congress

added (b)(1) and (2) in 1988, it put them in a separate

subsection from the offense described in (a), and declined

to label this subsection “Penalties,” as it has so often done

in other statutes. In 1990, Congress made the language of

§§ 1326(a), (b)(1), and (b)(2) parallel, indicating its intent

to require parallel treatment of these three provisions,

i.e., each as a separate offense.

In 1996, Congress made even clearer its intent that

(b)(1) and (b)(2) were separate offenses, and not just

sentencing enhancements, when it amended § 1326 by

adding subsections (b)(3) and (b)(4), which are clearly

separate offenses. In new subsection 1326(d), Congress

also evidenced its intent that the elements of subsection

(a) were implicitly incorporated into subsections (b)(1)

and (b)(2). Finally, in related legislation directed to the

Sentencing Commission, Congress explicitly referred to

§ 1326(b)(1) and (2) as “offenses.”

Because subsequent legislation declaring the intent of

Congress with respect to the earlier statute is entitled to

great weight in statutory construction, the history of the

amendments to § 1326 makes it plain that, in § 1326(b)(1)

and (2), Congress intended to create new offenses, not

just sentencing enhancements.

C. The same result follows from an analysis of the

language and structure of § 1326 in light of the factors

identified by this Court in Garrett. First, § 1326(b)(1) and

(2) do not predicate punishment under those sections on

a “conviction” or “violation” of § 1326(a). Rather, these

provisions apply “[iJn the case of [an] alien described in

[subsection (a)],” which could just as well, or better, be

read to simply incorporate by reference all of the ele-

ments of (a) into (b)(1) and (2). Second, § 1326(b)(1) and

(b)(2) do not “multiply” the penalty received under (a);

rather, each of these carries its own discrete penalty,

which makes no reference to the penalty in (a).

Nor does the statute in question here provide guide-

lines for the sentencing hearing - another feature identi-

fied by the Garrett Court as indicative of a sentencing

enhancement rather than a separate offense. Finally, the

title of § 1326 sheds no light on the question at issue,

since it is at best ambiguous. Accordingly, under the four-

factor Garrett analysis used by the court below,

§ 1326(b)(1) and (2) are best understood as creating inde-

pendent offenses, rather than just sentencing enhance-

ments of the offense set out in § 1326(a).

D. To the extent that legislative history may be con-

sulted to divine Congressional intent with respect to this

question, the available legislative history in this case is

unhelpful and therefore does not alter the conclusion

reached above that Congress intended for § 1326(b)(1)

and (b)(2) to comprise separate offenses.

E. Even if the Petitioner’s reading of the statute is

not deemed to be compelled by the language and struc-

ture of the statute, that reading is nonetheless compelled

by the rule of lenity, since the text, structure, and legisla-

tive history fail to establish that the government's posi-

tion is unambiguously correct.

F. Finally, this Court’s analysis should be informed

by the venerable principle that, where two constructions

of a statute are possible, the Court has the duty to select

the construction which avoids grave and doubtful consti-

tutional questions. Because the construction given by the

“Fifth Circuit in this case raises such questions, this Court

should avoid the constitutional questions by ruling in

Petitioner’s favor as a matter of statutory construction.

The Fifth Circuit’s construction of § 1326 in this case

— namely, that § 1326(b)(1) and (b)(2) are only sentencing

enhancements, not separate offenses — violates the consti-

tutional rights to (1) grand jury indictment in a federal

case, proof beyond a reasonable doubt, and due process

under the Fifth Amendment to the Constitution, and (2)

trial by jury and notice of the nature of the charges under

the Sixth Amendment.

A. The determinative fact of a prior felony convic-

tion or prior aggravated felony conviction, under

§ 1326(b)(1) and (2) respectively, requires punishment of

up to 10 or 20 years imprisonment respectively — that is,

either five or ten times the maximum term of imprison-

ment authorized in the absence of proof of this fact.

Because the determinative fact of a prior felony or aggra-

vated felony conviction results in a drastically greater

statutory maximum sentence, the Constitution requires

that such fact must be alleged in the indictment and

proved to a jury beyond a reasonable doubt.

B. A crime has always been understood to be com-

posed of two parts: the facts which comprise the prohib-

ited conduct and the punishment therefor. Thus, whether

labeled as “elements” or not, each of the facts that would

justify the punishment must be alleged in the indictment

and proved beyond a reasonable doubt, to satisfy the

defendant’s right to a grand jury indictment for, and

proof beyond a reasonable doubt of, a “crime,” and his

right to a jury trial in a “criminal prosecution.”

The punishment attached to the proscribed conduct

has always determined the amount of process due before

a person may be subjected to that punishment. Here, the

drastically increased level of punishment caused by proof

of the fact of a prior felony or aggravated felony under

§ 1326(b)(1) or (2) requires the highest degree of due

process available, to-wit: proof beyond a reasonable

doubt and the rest of the panoply of rights attendant

upon proof of a criminal offense.

C. At common law, as reflected in numerous deci-

sions of this Court and lower federal and state courts, the

nearly universal historical practice was that, where prior

convictions raised the statutory maximum punishment -

as is the case here — those convictions had to be alleged in

a charging instrument, and proved to a jury beyond a

reasonable doubt. This historical tradition from the com-

mon law informs this Court’s interpretation of the Consti-

tution, and requires that the Court hold this practice to be

compelled by the Constitution.

D. In fact, this Court’s decisions establish that when

the legislature has determined that the existence of a fact

will raise the maximum punishment, that fact must be

alleged in the indictment and proved beyond a reason-

able doubt to a jury. Moreover, in order to prevent the

erosion of the fundamental protections at issue, includ-

ing, notice, grand jury indictment, proof beyond a reason-

able doubt, and jury trial, this Court should exercise its

supervisory powers in this case. The Court’s supervisory

powers must be guided by the common law, state and

federal authority, and considerations of justice, which

compel the conclusion that the aggravated felony referred

to in 8 U.S.C. § 1326(b)(2) must be alleged in the indict-

ment and proved to a jury beyond a reasonable doubt.

The Court should therefore hold that a defendant

may not be punished under § 1326(b)(1) or (2) unless the

prior felony or aggravated felony is alleged in an indict-

ment, and proved beyond a reasonable doubt.

ARGUMENT

I. AS A MATTER OF STATUTORY CONSTRUCTION,

8 U.S.C. § 1326(b)(1) AND (b)(2) MUST BE READ AS

CREATING SEPARATE AND DISTINCT

OFFENSES FROM THE OFFENSE DESCRIBED IN 8

U.S.C. § 1326(a), RATHER THAN SENTENCING

ENHANCEMENTS OF THE OFFENSE DESCRIBED

IN § 1326(a).

A. Introduction.

In the present case, Petitioner argued below “that he

was charged with and pleaded guilty to [8 U.S.C.]

§ 1326(a), simple reentry [after deportation], but that he

was sentenced as if he had pleaded guilty to reentry

following a conviction for an aggravated felony for pur-

poses of § 1326(b)(2).” United States v. Almendarez-Torres,

No. 96-10254, slip op. at 1 (5th Cir. Aug. 22, 1996). (J.A.

18-19) However, the Fifth Circuit rejected Petitioner’s

claim on the basis of its prior decision in United States v.

Vasquez-Olvera, 999 F.2d 943 (5th Cir. 1993), cert. denied,

510 U.S. 1076 (1994). Almendarez-Torres, id. at 1-2. (J.A.

18-19)

In Vasquez-Olvera, a divided panel of the Fifth Circuit

held that 8 U.S.C. § 1326(b)(2) did not create a separate

criminal offense, but rather was only a sentencing

enhancement of the offense described in § 1326(a). Vas-

quez-Olvera, 999 F.2d at 945-47. Judge King dissented.

Judge King found that neither the language and structure

of § 1326(b), nor the legislative history surrounding the

enactment of that provision, clearly demonstrated Con-

gress’s intent with respect to this question. Id. at 947-49

(King, J., dissenting). Judge King then concluded that, in

light of this ambiguity, it was appropriate to apply the

rule of lenity and to hold that § 1326(b)(2) created a

separate criminal offense, rather than just a sentencing

enhancement. Id. at 949-50 (King, J., dissenting).

The majority of courts have agreed with the majority

opinion in Vasquez-Olvera, holding that § 1326(b)(1) and

(2) are not separate criminal offenses and that, therefore,

the “felony” and “aggravated felony” components of

§ 1326(b)(1) and (b)(2) respectively need not be alleged in

the indictment, nor proved beyond a reasonable doubt.*

The Ninth Circuit, however, has squarely held that

§ 1326(b)(1) and (b)(2) create separate criminal offenses

from that described in § 1326(a), and that the “felony”

and “aggravated felony” components of the former provi-

sions are elements which must be pleaded in the indict-

ment and proved beyond a reasonable doubt before a

defendant may be sentenced under those provisions.‘

3 See United States v. Valdez, 103 F.3d 95, 97-98 (10th Cir.

1996); United States v. Haggerty, 85 F.3d 403, 405-06 (8th Cir.

1996); United States v. DeLeon-Rodriguez, 70 F.3d 764, 766-67 (3rd

Cir. 1995), cert. denied, __ U.S. __, 116 S.Ct. 1343 (1996); United

States v. Palacios-Casquete, 55 F.3d 557, 560 (11th Cir. 1995), cert.

denied, __ U.S. __, 116 S.Ct. 927 (1996); United States v. Cole, 32

F.3d 16, 18-19 (2nd Cir.), cert. denied, 513 U.S. 993 (1994); United

States v. Crawford, 18 F.3d 1173, 1178-79 (4th Cir.), cert. denied,

513 U.S. 860 (1994); Linited States v. Forbes, 16 F.3d 1294, 1300 (1st

Cir. 1994); see also United States v. Mufloz-Cerna, 47 F.3d 207, 210

n.6 (7th Cir. 1995) (dicta).

4 See United States v. Campos-Martinez, 976 F.2d 589, 591-592

(9th Cir. 1992); United States v. Gonzalez-Medina, 976 F.2d 570,

572-73 (9th Cir. 1992); United States v. Arias-Granados, 941 F.2d

996, 998 (9th Cir. 1991) (“A prior felony conviction is an element

of ...8 U.S.C. § 1326. . . . ”) (dicta). Accord Vasquez-Olvera, 999

F.2d at 947 & 949-50 (King, J., dissenting); United States v. Vieira-

The courts have differed more widely in the appro-

priate mode of analysis to use in deciding this question.

The Fifth Circuit in Vasquez-Olvera, relying on its prior

decision in United States v. Davis, 801 F.2d 754 (5th Cir.

1986), analyzed the language and structure of § 1326 by

looking to a number of factors first articulated in this

Court’s decision in Garrett v. United States, 471 U.S. 773

(1985).5 See Vasquez-Olvera, 999 F.2d at 945-46; see also id.

Candelario, 811 F.Supp. 762, 768 (D.R.I. 1993), overruled in

relevant part by United States v. Forbes, 16 F.3d 1294, 1300 (1st Cir.

1994).

5 In Davis, the Fifth Circuit applied a number of factors

drawn from this Court’s decision in Garrett to decide a question

similar to that presented by this case: i.e., whether the former

version of the Armed Career Criminal Act (hereafter “former

ACCA”) - located at former 18 U.S.C. App. § 1202(a) - created a

separate criminal offense from the offense of being a felon in

possession of a firearm (which latter offense was set out in the

sentence preceding the former ACCA), or whether the former

ACCA was merely a sentencing enhancement of the offense

contained in the preceding sentence. The circuits were divided

on this question as well. Compare United States v. Rumney, 867

F.2d 714, 718-19 (1st Cir.) (sentencing enhancement), cert. denied,

491 U.S. 908 (1989); United States v. Dickerson, 857 F.2d 414, 417

(7th Cir. 1988), cert. denied, 490 U.S. 1023 (1989); United States v.

Brewer, 853 F.2d 1319, 1322-27 (6th Cir.) (same), cert. denied, 488

U.S. 346 (1988); United States v. Rush, 840 F.2d 574, 577-78 (8th

Cir.) (en banc) (same), cert. denied, 487 U.S. 1238 (1988) and cert.

denied, 487 U.S. 1239 (1988); United States v. Blannon, 836 F.2d

843, 844-45 (4th Cir.) (same), cert. denied, 486 U.S. 1010 (1988);

United States v. West, 826 F.2d 909, 911-12 (9th Cir. 1987) (same);

United States v. Jackson, 824 F.2d 21, 25-26 (D.C. Cir. 1987) (Ruth

Bader Ginsburg, J.) (same), cert. denied, 484 U.S. 1013 (1988);

United States v. Hawkins, 811 F.2d 210, 220 (3rd Cir.) (same), cert.

denied, 484 U.S. 833 (1987); and United States v. Gregg, 803 F.2d

568, 570 (10th Cir. 1986), cert. denied, 480 U.S. 920 (1987) with

at 947-49 (King, J., dissenting) (also applying Garrett/

Davis factors). Other courts have supplemented the Gar-

rett/Davis analysis with (or eschewed it in favor of) a

broader-based analysis of the language, structure, and

legislative history of § 1326. See, e.g., Forbes, 16 F.3d at

1298 (noting that Garrett factors may be helpful, but are

not conclusive; citing Rumney, 867 F.2d at 718-19). The

Ninth Circuit has taken a different tack and has inter-

preted § 1326 in light of its case law construing 8 U.S.C.

§ 1325, the statute forbidding illegal entry into the United

States. See Campos-Martinez, 976 F.2d at 591-92.

In the present case, analysis of the language and

structure of § 1326 -— including how § 1326 has evolved

statutorily - compels the conclusion that § 1326(b)(1) and

(b)(2) create new offenses, separate and distinct from the

offense described in § 1326(a), rather than sentencing

enhancements. This conclusion is bolstered by particular

application of the Garrett factors to the statutes at issue.

Accordingly, the Fifth Circuit erred in holding that

§ 1326(b)(1) and (b)(2) are merely sentencing enhance-

ments of the offense described in § 1326(a).

Davis, 801 F.2d at 755-56 (5th Cir. 1986) (separate criminal

offense). See also United States v. Brewer, 841 F.2d 667, 668-69 (6th

Cir. 1988) (separate criminal offense), rev'd in relevant part on

panel reh’g, 853 F.2d 1319, 1322-27 (6th Cir. 1988), cert. denied, 488

U.S. 946 (1988); Brewer, 853 F.2d at 1327-29 (Merritt, J.,

dissenting) (separate criminal offense); Rush, 840 F.2d 574,

578-80 (Gibson, J., dissenting) (same); Hawkins, 811 F.2d at

223-25 (Rosenn, J., dissenting) (same).

B. The Language and Structure of 8 U.S.C. § 1326 -

Particularly Viewed in t of the Statutory

Evolution of That Statute by Subsequent Con-

gressional Amendments - Compel the Conclu-

sion That Congress Intended That 8 U.S.C.

§ 1326(b)(1) and (b)(2) Be New, Separate

Offenses, Rather Than Just Sentencing En-

hancements of the Offense Described in

§ 1326(a).

In cases involving statutory interpretation, this Court

looks “first to the language of the statute itself.” Hughey

v. United States, 495 U.S. 411, 415 (1990); see also United

States v. Turkette, 452 U.S. 576, 580 (1981). If the language

of the statute does not plainly or unambiguously express

the Congressional intent underlying the statute, however,

this Court will attempt to divine the Congressional intent

from an examination of “the language, structure, and

legislative history” of the statute. Garrett, 471 U.S. at 779;

see also id. at 778-85 (conducting such an analysis).

In this case, the language and the structure of § 1326

- particularly the 1988 amendments adding subsections

(b)(1) and (b)(2), and subsequent amendments to § 1326 -

demonstrate that Congress intended that subsections

(b)(1) and (b)(2) were to be new, separate offenses, and

not just enhancements of the sentence imposed for an

offense under § 1326(a).

1. The 1988 Amendments

The statute at issue in this case - 8 U.S.C. § 1326 -

was originally enacted by Congress in 1952. Ch. 477, Title

IL, ch. 8, § 275, 66 Stat. 229 (June 27, 1952). So the statute

remained for over 35 years, until 1988, when the statute

was amended to add the particular provisions at issue in

this case — § 1326(b)(1) and (b)(2).”7 Pub. L. 100-690, Title

VIL, § 7345(a), 102 Stat. 4471 (Nov. 18, 1988).

The language and the structure of the 1988 amend-

ments adding subsections (b)(1) and (b)(2) demonstrate

that Congress intended that subsections (b)(1) and (b)(2)

were to be new, separate offenses, and not just enhance-

ments of the sentence imposed for an offense under

§ 1326(a). First of all, it is significant that Congress placed

the “felony” and “aggravated felony” provisions in their

own subsection, with a different letter than that assigned

to the original offense of “simple” illegal reentry found in

subsection (a). Moreover, “Congress could have easily

7 The 1988 amendments are set out at Appendix B-2

through B-3 in the following format: additions to the

predecessor version are indicated in bold, and deletions from

the predecessor version are struck out. This format will be

followed with respect to all of the discussed amendments of

§ 1326.

8 Compare United States v. Ryan, 9 F.3d 660, 667 (8th Cir.

1993) (finding 18 U.S.C. § 844(i) to be sentencing enhancement,

based on, inter alia, the fact that “lack of clear division into

separate sections suggests treatment of contents as a single

offense”), aff'd on reh’g en banc, 41 F.3d 361 (8th Cir. 1994) (en

banc), cert. denied, __ U.S. __, 115 S.Ct. 1793 (1995); Hawkins,

811 F.2d at 218-19 (finding former ACCA to be sentencing

enhancement based on, inter alia, the fact that “the inclusion of

the [former ACCA] into the same paragraph as the previously

enacted [felon-in possession] statutes, with no division into

separate numbers or letters, treatment of the contents

as a single offense”) (emphasis added); Rumney, 867 F.2d at

717-18 (same; citing Hawkins); Brewer, 853 F.2d at 1324 (same;

titled subsection (b) as a separate penalty provision,

which it chose not to do; the failure to do so is notewor-

thy.” Vasquez-Olvera, 999 F.2d at 949 (King, J., dissenting).

Indeed, Congress has frequently done just that, by titling

one subsection of a statute the “offense,” and another one

the “penalty” or “punishment.”?

In sum, the fashion in which Congress added

§ 1326(b)(1) and (b)(2) to § 1326 in 1988 indicates that

Congress then intended to create new separate offenses,

rather than just sentencing enhancements. This conclu-

sion is further supported by the subsequent amendments

to § 1326, as discussed below.

2. The 1990 Amendments

Only two years later, Congress amended § 1326

again.’° Pub. L. 101-649, Title V, § 543(b)(3), 104 Stat. 5059

(Nov. 29, 1990). The 1990 amendments to § 1326 bolster

the conclusion that Congress intended § 1326(b)(1) and

(b)(2) to create new, separate offenses rather than just

sentencing enhancements of the offense contained in

§ 1326(a). As this Court has noted, “[s]ubsequent legisla-

tion declaring the intent of an earlier statute is entitled to

also citing Hawkins); West, 826 F.2d at 911 (same; also citing

Hawkins); Jackson, 824 F.2d at 23-24 (observing that Hawkins

“observation ha[s] force”).

9 See, e.g., 21 U.S.C. § 841 (subsection (a) entitled “Unlawful

acts”; subsection (b) entitled “Penalties”); 18 U.S.C. § 1091

(subsection (a) entitled “Basic offense”; subsection (b) entitled

“Punishment for basic offense”).

10 The 1990 amendments to § 1326 are set out at Appendix

B-4 through B-5.

great weight in statutory construction.” Red Lion Broad-

casting Co., Inc. v. FCC, 395 U.S. 367, 380-81 (1969) (foot-

note with citations omitted); see also Seatrain Shipbuilding

Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980) (views of

subsequent Congresses “entitled to significant weight”).

This is “particularly so when the precise intent of the

enacting Congress is obscure.” Seatrain Shipbuilding, 444

U.S. at 596.

The 1990 amendments made two changes confirming

Congress's original intention to make (a), (b)(1), and

(b)(2) each a separate offense. First, Congress amended

subsection (a) so as to make its provisions respecting fine

and imprisonment parallel with those in (b)(1) and (b)(2).

This evidences Congress’s intent that (a), (b)(1), and

(b)(2) each be treated the same - i.e., as a separate

offense. Cf. Communications Workers of America v. Beck, 487

U.S. 735, 752 (1988) (“Given the parallel purpose, struc-

ture, and language of [one provision], we must interpret

that provision in the same manner [as its parallel].”);

Hillsboro Nat'l Bank v. CIR, 460 U.S. 370, 402 (1983) (given

Congressional acquiescence in judicial interpretation of

26 U.S.C. § 337, “we must conclude that Congress

intended the same construction of the same language in

the parallel provision in § 336.”) This conclusion is bol-

stered by Congress’s deletion, in the same amendment, of

the language “shall be guilty of a felony,” which language

had theretofore been found only in (a), and not in (b)(1)

or (2). Thus, by its amendments in 1990, Congress made

even clearer its original intent that (b)(1) and (b)(2) were

meant to describe separate offenses from the offense

described in (a).

—

3. The 1994 and 1996 Amendments

Section 1326 was amended again in 1994.'! Pub. L.

103-322, Title XIII, § 130001(b), 108 Stat. 2023 (Sept. 13,

1994). The principal thrust of these amendments was the

increase of the maximum terms of imprisonment pre-

scribed under § 1326(b)(1) and (b)(2), from 5 and 15 years,

to 10 and 20 years, respectively. See id.

Finally, in 1996, § 1326 was amended twice. The first

of these amendments was on April 24, 1996.!2 Pub. L.

104-132, Title IV, §§ 401(c), 438(b), 441(a), 110 Stat. 1267,

1276, 1279 (Apr. 24, 1996). The second 1996 amendment

was on September 30, 1996, and was to take effect on the

first day of the first month beginning more than 180 days

after enactment.'® Pub. L. 104-208, Div. C, Title III,

§§ 305(b)(1)-(3), 308(d)(4)(J), 308(e)(1)(K), 308(e)(14)(A),

309, 110 Stat. 3009 (Sept. 30, 1996).

The 1996 amendments provide additional support for

the proposition that Congress intended for § 1326(b)(1)

and (b)(2) to be separate offenses. First, in these amend-

ments, Congress added subsections (b)(3) and (b)(4),

which are clearly new offenses, separate from those in

subsection (a). The addition of the new offenses in (b)(3)

and (b)(4) demonstrates that Congress intended all of the

divisions of subsection (b) to be separate offenses. It

would make very little sense to have § 1326(b) comprised

11 These amendments are set out at Appendix B-6 through B-7.

12 These amendments are set out at Appendix B-8 through

B-10.

13 These amendments are set out at Appendix B-11 through

B-13.

of four divisions, two of which were separate offenses,

and two of which were only sentencing enhancements for

an offense contained in another subsection. Congress’s

inclusion of the new offenses found in (b)(3) and (b)(4)

indicates that it intended parallel treatment of (b)(1) and

(b)(2) as separate offenses. Cf. Communications Workers of

America v. Beck, 487 U.S. at 752; Hillsboro Nat‘l Bank v. CIR,

460 U.S. at 402.

Furthermore, also in the 1996 amendments, Congress

added § 1326(d) respecting collateral attacks of underly-

ing deportation orders. This subsection places conditions

on an alien’s ability to “challenge the validity of the

deportation order described in subsection (a)(1) or sub-

section (b) of this section. . . . ” This is yet another

indication that Congress intended for subsection (b)(1)

and (b)(2) to be separate and distinct offenses from the

one(s) described in (a): if subsection (b) merely contained

enhancements of the sentence for the offense described in

(a), why would Congress need to refer to both (a) and (b)

in § 1326(d)?

Also significant is the fact that, unlike the text of

subsection (a)(1), the text of subsection (b) does not con-

tain the phrase “deportation order.” Any “deportation

order” “described in . . . subsection (b),” see 8 U.S.C.

§ 1326(d), is solely through implicit incorporation from

subsection (a). Thus, subsection (d) is evidence that Con-

gress intended to incorporate the elements of subsection

(a) into subsection (b) — leading to the conclusion that (a)

and (b) set out distinct offenses.

Finally, in a piece of related legislation, Congress (in

perhaps the plainest expression of its intent) directed the

United States Sentencing Commission to “promptly pro-

mulgate, pursuant to section 994 of title 28, United States

Code, amendments to the sentencing guidelines to make

appropriate increases in the base offense level for

offenses under section 242(e) and 276(b) of the Immigra-

tion and Nationality Act (8 U.S.C. 1252(e) and 1326(b))

to reflect the amendments made by section 130001 of the

Violent Crime Control and Law Enforcement Act of

1994.” Pub. L. 104-208, 110 Stat. 3009, § 334 (Sept. 30,

1996) (emphasis added). By its selection of the term

“offenses,” Congress made it pellucidly clear that the

provisions of § 1326(b) set out separate crimes, with their

own elements, rather than sentencing enhancements of

the offense contained in § 1326(a).'* See United States v.

LaBonte, __ U.S. ___, 117 S.Ct. 1673, __, 1997 WL 273644

*12 (May 27, 1997) (Breyer, J., dissenting) (“[T]he word

‘offense’ is a technical term in the criminal law, referring

to a crime made up of statutorily defined elements.”).

In sum, the language and structure of § 1326 - espe-

cially viewed in light of the history of Congress’s amend-

ments to that statute — instruct that Congress intended to

create new, separate offenses in § 1326(b)(1) and (b)(2),

not mere sentencing enhancements of the offense set out

in subsection (a).

4 Moreover, the reference is specifically to § 1326(b)(1) and

(b)(2) since these were the provisions amended by the 1994 Act.

Indeed, subsections (b)(3) and (b)(4) were not even added until

1996.

C. Analysis of the Language and Structure of 8

U.S.C. § 1326 in Light of the Factors Mentioned

by This Court in Garrett v. United States Does

Not Change the Conclusion Reached Above.

The conclusion reached above - i.e., that in

§ 1326(b)(1) and (b)(2) Congress intended to create new,

separate offenses, rather than sentencing enhancements

for the offense described in (a) — is not altered by use of

the alternative analysis (used by the Fifth Circuit in Vas-

quez-Olvera and hence in this case) under the factors

mentioned in this Court’s opinion in Garrett v. United

States. As articulated by the Fifth Circuit in Vesquez-

Olvera, by way of citation to its prior opinion in Davis,

Garrett sets out “four factors that are helpful in determin-

ing whether Congress intended a statutory provision to

create an independent federal offense or a sentence-

enhancement provision. Those factors are: (1) whether

the statute predicates punishment upon conviction under

another section, (2) whether the statute multiplies the

penalty received under another section, (3) whether the

statute provides guidelines for the sentencing hearing,

and (4) whether the statute is titled as a sentencing provi-

sion.” Vasquez-Olvera, 999 F.2d at 945, citing Dervis, 801

F.2d at 756 (additional citation omitted). Each of these

will be analyzed in turn.

1. Does the Statute Predicate Punishment

upon Conviction under Another Section?

Rather than predicating punishment upon conviction

under § 1326(a), it is just as likely, if not more so, “that

the drafters of the 1988 amendments to § 1326 could have

intended simply to incorporate the three elements of

§ 1326(a) into § 1326(b) and simply add the additional

element regarding a prior conviction of a felony or aggra-

vated felony.” Vasquez-Olvera, 999 F.2d at 948 (King, J.,

dissenting) (footnotes & citation omitted); accord Forbes,

16 F.3d at 1298. The Ninth Circuit has no doubt that this

was so: “ .. . § 1326(a) and (b) stand alone, each with its

own elements and sentence provisions.” United States v.

Oliver, 60 F.3d 547, 553-54 (9th Cir. 1995). Moreover, the

inference that Congress intended to incorporate the ele-

ments of subsection (a) into the provisions of (b) is bol-

stered by the subsequent passage of § 1326(d), as

discussed in Section 1.B.3., supra.

In this regard, it is also notable that subsection (b)

states that it applies “in the case of any alien described

in” subsection (a); it does not say “in the case of any alien

convicted of” the offense set forth in subsection (a).

Vasquez-Olvera, 999 F.2d at 948 (King, J., dissenting). Con-

gress could easily have provided that subsection (b)

would apply in the case of a “conviction under subsection

(a)” or in the case of a “violation of subsection (a)” — and,

indeed, it has used such language in a number of provi-

sions which are unmistakably intended to be sentencing

enhancements. As this Court has observed, “When Con-

gress intended that the defendant have been previously

convicted, it said so,” by explicitly using words like “con-

viction” or “convicted.” Sedima, S.P.R.L. v. Imrex Co., Inc.,

473 U.S. 479, 489 n.7 (1985). That Congress did not do so

15 See, ¢.g., 18 U.S.C. § 924(e); 18 U.S.C. § 3147; 21 U.S.C.

§ 841(b).

in this case is a strong indication that it did not intend for

§ 1326(b) to be predicated upon conviction under

§ 1326(a).

Additionally, the phrase “[iJn the case of an alien

described in [subsection (a)]” in § 1326(b) is quite similar

to the phrase “[in] the case of a person who receives,

possesses, or transports. .. . “ contained in the former

ACCA. In both instances, the statutes make reference to

the case of one who has committed certain conduct. Yet,

the courts interpreting the former ACCA had agreed that

the quoted phrase from that provision did not predicate

punishment on, or refer to, conviction under another

statute within the meaning of the first Garrett factor.'*

Congress's use of the analogous phrase in 1988 must be

interpreted against the backdrop of these court cases

from the same time period. Cf. Lorillard v. Pons, 434 U.S.

575, 581 (1978) (“[WJhere, as here, Congress adopts a new

law incorporating sections of a prior law, Congress nor-

mally can be presumed to have had knowledge of the

interpretation given to the incorporated law, at least inso-

far as it affects the new statute.”).

Furthermore, “the use of the phrase ‘[njotwithstand-

ing subsection (a),’ if anything, argues in favor of holding

that the drafters of subsection (b) intended it to be a

separate offense.” Vasquez-Olvera, 999 F.2d at 948 (King,

J., dissenting) (footnote omitted). And, as discussed

718 (agreeing that first Garrett/Davis factor is not satisfied; citing

Davis); Rush, 840 F.2d at 577 (same); cf. Jackson, 824 F.2d at 23-24

(discussing this holding from Davis and opining that this

“observation ha[s] force”).

above, the history of the amendments to § 1326, taken as

a whole, indicates that Congress has always intended that

§ 1326(b)(1) and (b)(2) were separate offenses, not merely

sentencing enhancements of the offense set out in

§ 1326(a).

In sum, there is no indication of any intent to predi-

cate punishment under § 1326(b) upon conviction under

§ 1326(a). The first Garrett factor, therefore, counsels that

§ 1326(b)(1) and (b)(2) be construed as independent

offenses, not sentencing enhancements.

2. Does the Statute Multiply the Penalty

Received under Another Section?

The answer to this question is clearly “No”: “a sepa-

rate penalty is set out [in § 1326(b)], rather than a multi-

plier of the penalty established for some other offense.”

Garrett, 471 U.S. at 781; cf. Rush, 840 F.2d at 579 (Gibson,

J., dissenting) (“the existence of a discrete offense is indi-

cated by the fact that the provision carries its own pen-

alty, ‘rather than a multiplier of the penalty established

for some other offense’ ”; citing Garrett). The second Gar-

rett factor, therefore, counsels that § 1326(b)(1) and (b)(2)

be construed as independent offenses, not sentencing

enhancements.

Moreover, as Judge King noted in her dissent in

Vasquez-Olvera, “[clommon sense suggests that a ‘multi-

plier’ in the context of a sentencing enhancement statute

generally refers to an increase by two or three fold at the

most. However the potential for such a draconian

increase under subsection (b) - from a maximum of two

to fifteen years, i.e., over a seven-fold increase — suggests

that a separate offense was intended.”!” Vasquez-Olvera,

999 F.2d at 948 (King, J., dissenting), citing McMillan v.

Pennsylvania, 477 U.S. 79 (1986). Judge King correctly

suggested that construing factors producing such a large

increase in punishment as sentencing enhancements,

rather than essential elements of new offenses, creates the

specter of a sentencing fact’s being the “tail which wags

the dog of the substantive offense” warned of in this

Court’s opinion in McMillan. See Vasquez-Olvera, 999 F.3d

at 948 (King, J., dissenting); see also McMillan, 477 U.S. at

88. As discussed in more detail below, this Court should

certainly construe § 1326(b) in such a fashion as to avoid

the thorny constitutional questions adverted to by Judge

King: i.e., this Court should hold that, as a matter of

statutory construction the “felony” and “aggravated fel-

ony” provisions of § 1326(b)(1) and (b)(2) are essential

elements of two separate criminal offenses created in

those two subsections.

3. Does the Statute Provide Guidelines for the

Sentencing Hearing?

It is universally conceded that § 1326(b) does not

satisfy this third Garrett factor. See, e.g., Vasquez-Olvera,

999 F.2d at 945. This is yet another indication that

17 Since the time of Judge King’s dissent, the increase

described by her as “draconian” has become even more so. In

1994, the penalties for a violation of § 1326(b)(1) and (b)(2) were

increased from 5 and 15 years imprisonment, to 10 and 20 years

imprisonment, respectively. Pub. L. 103-322, Title XIII,

§ 130001(b), 108 Stat. 2023 (Sept. 13, 1994). Thus, the seven-fold

increase described by Judge King has now become a ten-fold

increase.

§ 1326(b)(1) and (b)(2) were intended to constitute new,

independent offenses rather than just sentencing enhan-

cements.

4. Is the Statute Titled as a Sentencing Provi-

sion?

The individual subsections of § 1326 are not sep-

arately titled, and the title of § 1326 sheds no light on the

question at hand. At the time relevant to this case, § 1326

was entitled “Reentry of deported aliens; criminal penal-

ties for reentry of certain deported aliens.”'* Although

the title might plausibly be construed as setting out one

substantive crime in subsection (a) and additional sen-

tencing enhancements in subsection (b), “a competing

interpretation is equally permissible. The bifurcated

structure of § 1326 and the apparent incorporation of the

elements of subsection (a) into subsection (b) might also

suggest that Congress intended the broad title of the

offense (‘reentry of deported alien’) to apply to both

separate offenses in the different subsections.”!9 Forbes,

18 Under the second set of 1996 amendments, the title of

§ 1326 has been changed to “Reentry of removed alien; criminal

penalties for reentry of certain removed aliens.” Pub. L. 104-208,

Div. C, Title IIL, §§ 308(e)(14), 309, 110 Stat. 3009 (Sept. 30, 1996).

19 Moreover, the presence of the word “penalties” in the

title is of very little significance, since Congress has frequently

placed substantive offenses into subsections of statutory

sections entitled “Penalties.” For example, 18 U.S.C. § 924 is

entitled “Penalties”; yet, this Court has held that § 924(c)

describes a separate offense, not just a sentencing enhancement.

See Simpson v. United States, 435 U.S. 6, 10 (1978). See also, e.g., 8

U.S.C. § 1306; 18 U.S.C. § 844.

16 F.3d at 1298, citing Vasquez-Olvera, 999 F.2d at 949

(King, J., dissenting); cf. Vieira~Candelario, 811 F.Supp. at

767 (statute’s title is, at best, ambiguous).

Indeed, “Congress could have easily titled subsection

(b) as a penalty provision, which it chose not to do; the

failure to do so is noteworthy.” Vasquez-Olvera, 999 F.2d at

949 (King, J., dissenting). Congress not only knows how

to do so, but has in fact frequently done so.”° The absence

of such language here suggests that Congress “apparently

incorporated subsection (a)’s elements into subsection (b)

suggesting that subsection (b) was intended to be inde-

pendent of subsection (a).” Id.

In sum, the language and structure of § 1326 compel

the conclusion that, in 8 U.S.C. § 1326(b)(1) and (b)(2),

Congress intended to create new, independent criminal

offenses, rather than just sentencing enhancements for

the already-existing offense in subsection (a). Analysis of

the four factors gleaned from this Court’s decision in

Garrett supports this conclusion. Accordingly, this Court

should find that § 1326(b)(1) and (b)(2) create new

offenses, and that the “felony” and “aggravated felony”

provisions of those subsections are essential elements

which must be pleaded in the indictment and proved

beyond a reasonable doubt.

20 See footnote 9, supra.

D. Even If It Is Permissible to Consult Legislative

History to Clarify a Textually Ambiguous Stat-

ute, the Legislative History Surrounding the

Provisions at Issue Here is Not Helpful.

The courts have noted that there is no legislative

history which sheds any light on this subject. See Forbes,

16 F.3d at 1298; Vasquez-Olvera, 999 F.2d at 946 n.5; see also

id. at 949 (King, J., dissenting); cf. Campos-Martinez, 976

F.2d at 592 (“We do not find [§ 1326(b)’s] legislative

history useful in this case.”). Thus, to the extent that

legislative history may be consulted to divine the legisla-

tive intent behind a textually unclear legislative pronoun-

cement,?1 the legislative history does not alter the

conclusion reached above - that Congress intended for

§ 1326(b)(1) and (b)(2) to comprise new federal offenses,

not merely sentencing enhancements of the offense in

§ 1326(a).

E. At Best, the Statute in Question is at Least

Ambiguous; and, in that Case, the Rule of

Lenity Requires that § 1326(b)(1) and (b)(2) Be

Read as Creating New Offenses.

As set forth above, the language and structure of

§ 1326, viewed through the prism of the amendments to

that statute, plainly establish that Congress intended to

21 But see United States v. R.L.C., 503 U.S. 291, 307 (1992)

(Scalia, J., concurring in part and concurring in the judgment,

joined by Kennedy and Thomas, JJ.) (“[I]t is not consistent with

the rule of lenity to construe a textually ambiguous penal

statute against a criminal defendant on the basis of legislative

history.”).

———

create new, separate offenses in § 1326(b)(1) and (2), not

merely sentencing enhancements of the offense described

in (a). Whether or not one agrees with this position,

however, one thing is certainly clear - the language,

structure, and legislative history of the statute in question

do not establish that the government's contrary position

is unambiguously correct. To paraphrase Justice Scalia,

“le]ven if the [Court] does not consider the issue to be as

clear as [Petitioner] do[es], [it] must at least acknowl-

edge . . . that it is eminently debatable - and that is

enough, under the rule of lenity, to require finding for the

petitioner here.” Smith v. United States, 508 U.S. 223, 246

(1993) (Scalia, J., dissenting). “In these circumstances -

where text, structure, and history fail to establish that the

Government's position is unambiguously correct - [this

Court] appl[ies] the rule of lenity and resolve[s] the ambi-

guity in [the petitioner’s] favor.” United States v. Grander-

son, 511 U.S. 39, 54 (1994), citing Bass, 404 U.S. at 347-49;

see also Ladner v. United States, 358 U.S. 169, 177 (1958).

Therefore, should any doubt remain as to whether

§ 1326(b)(1) and (b)(2) were intended by Congress to

create new offenses, the rule of lenity nevertheless com-

pels that conclusion. See Vasquez-Olvera, 999 F.2d at 949-50

(King, J., dissenting) (dissent would hold that rule of

lenity compels conclusion that § 1326(b)(1) and (b)(2) set

out separate offenses, not just sentencing enhancements).

F. Construing § 1326(b)(1) and (b)(2) as Indepen-

dent Offenses Rather Than Sentencing Enhan-

cements Is Consistent With the Canon of

Statutory Construction Requiring Courts to

Choose a Plausible Construction Which Avoids

Serious Constitutional Problems.

This Court has long held that “where a statute is

susceptible of two constructions, by one of which grave

and doubtful constitutional questions arise and by the

other of which such questions are avoided, [the court's]

duty is to adopt the latter.” United States ex rel. Attorney

General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)

(citation omitted). Thus, “ ‘[a] statute must be construed,

if fairly possible, so as to avoid not only the conclusion

that it is unconstitutional, but also grave doubts upon

that score.’” United States v. LaFranca, 282 U.S. 568, 574

(1931), quoting United States v. Jin Fuey Moy, 241 U.S. 394,

401 (1916) (other citations of authority omitted). See also

Concrete Pipe and Products of California, Inc. v. Construction

Laborers Pension Trust for Southern California, 508 U.S. 602,

628-29 (1993) (referring to this rule of statutory construc-

tion as a “hoary one” and collecting authorities’.

As demonstrated in the discussion in Section IL,

infra, to hold that Congress intended for § 1326(b)(1) and

(b)(2) to be only sentencing enhancements rather than

independent offenses raises difficult constitutional ques-

tions about the constitutional limitations of Congress's

power to circumvent the requirements of grand jury

indictment, jury trial, due process, and proof beyond a

reasonable doubt by calling a critical fact a “sentencing

factor” rather than an essential “element” of a criminal

offense. This Court can, and should, avoid these difficult

questions by construing § 1326(b)(1) and (b)(2) as sepa-

rate criminal offenses rather than as sentencing enhance-

ments of the offense set out in § 1326(a).

Il. THE CONSTITUTION REQUIRES THAT, IN A

FEDERAL CASE, WHENEVER THE MAXIMUM

IMPRISONMENT RANGE IS INCREASED BASED

ON A FACT, THAT FACT MUST BE ALLEGED IN

THE INDICTMENT AND PROVED BEYOND A

REASONABLE DOUBT IN A JURY TRIAL.

A. Introduction.

A major problem with the Fifth Circuit’s analysis in

Vasquez-Olvera, is that it ignores the traditional rule that

facts which increase the maximum sentence must be

alleged in the formal charging document, and proved

beyond a reasonable doubt. The traditional rule is based

on fundamental rights guaranteed by our Constitution. A

crime is made of two parts, the facts that constitute the

prohibited act and the penalty for those facts. When the

existence of a fact raises the statutory maximum sentence,

the defendant is entitled to have that fact alleged in the

indictment and proved to a jury beyond a reasonable

doubt.

In 8 U.S.C. § 1326(b)(2), the determinative fact of a

previous aggravated felony conviction results in a dras-

tically greater maximum sentence. Therefore, the United

States Constitution requires that such fact must be

alleged in an indictment and proved to a jury beyond a

reasonable doubt.

The Fifth Amendment to the United States Constitu-

tion provides that “[n]o person shall be held to answer

for a capital, or otherwise infamous crime, unless on

presentment or indictment of a grand jury. . . . or be

deprived of life, liberty or property, without due process

of law. ...” The Sixth Amendment provides that “[iJn all

criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury, .. . , and to

be informed of the nature of the accusation against him;

to be confronted with the witnesses against him;.... ”

Thus, a federal felony defendant has the right to be

charged by a grand jury indictment, which indictment

must “’ .. . set forth all the elements of the offense

intended to be punished.’ ” Hamling v. United States, 418

U.S. 87, 117 (1974), quoting United States v. Carll, 105 U.S.

611, 612 (1882)). Furthermore, once charged, the defen-

dant has the right to compel the government to prove

“beyond a reasonable doubt . . . every fact necessary to

constitute the crime with which he is charged.” In re

Winship, 397 U.S. 358, 364 (1970). And, the defendant has

a right to have these facts determined by a jury. United

States v. Gaudin, 515 U.S. 506, __, 115 S.Ct. 2310, 2314

(1995).

B. The Punishment Defines the Crime.

In Professor Wayne LaFave’s words: “a crime is made

up of two parts, forbidden conduct, and a prescribed

penalty. The former without the latter is no crime.” 1 W.

LaFave & A. Scott, Jr., Substantive Criminal Law § 1.2(d)

(1986); see also United States v. Evans, 333 U.S. 483, 485, 495

(1948); United States v. Eaton, 144 U.S. 677, 686 (1892).

Indeed, this Court has noted that, by “the severity of the

penalty authorized,” “the legislature has included within

the definition of the crime itself a judgment about the

seriousness of the offense.” Frank v. United States, 395 U.S.

147, 149 (1969).

Crimes are categorized by the maximum penalties

prescribed for the offense, e.g., capital offense, felony

offense, or petty offense. This notion is embodied in the

plain words of the Constitution, where the right to grand

jury indictment depends on the extent of the potential

penalty for the offense, and the quantum of process due

is likewise predicated on the possible penalty.

The right to jury trial depends on the “severity of the

maximum authorized penalty,” Baldwin v. New York, 399

U.S. 66, 68 (1970); see also id. at 73-74, because “[i]n such

cases, the legislature has included within the definition of

the crime itself a judgment about the seriousness of the

offense.” Frank, 395 U.S. at 149. See Duncan v. Louisiana,

391 U.S. 145, 159-62 (1968); Schick v. United States, 195 U.S.

65, 68 (1903). The maximum potential penalty also gov-

erns the right to indictment by a grand jury. Ex parte

Wilson, 114 U.S. 417, 423 (1885) (“[W]Jhether a man shall

be put upon his trial for crime without a presentment or

indictment by a grand jury of his fellow-citizens depends

upon the consequences to himself if he shall be found

guilty. . . . “) (citing Blackstone, James Madison, and the

Journal Massachusetts Convention 1788).

The degree of proof required depends as well on the

potential punishment. See, ¢.g., Addington v. Texas, 441

U.S. 418, 423-26 (1979). “At one end of the spectrum is the

typical civil case involving a monetary dispute between

private parties,” where “the burden of proof is a mere

preponderance of evidence.” Id. at 423. “In a criminal

case on the other hand, the interests of the defendant are

of such magnitude that . . . they have been protected by

standards of proof . . . beyond a reasonable doubt.” Id. at

423-24. This Court noted: “There are significant reasons

why different standards of proof are called for in civil

commitment proceedings as opposed to criminal prosecu-

tions. In a civil commitment state power is not exercised

in a punitive sense.” Id. at 428.

With regard to the penalty of denaturalization, this

Court has said, “ . . . in view of the grave consequences to

the citizen, naturalization decrees are not lightly to be set

aside - the evidence must indeed be ‘clear, unequivocal,

and convincing’ and not leave the issue in doubt.” Chaunt

v. United States, 364 U.S. 350, 353 (1960) (citations omit-

ted). Likewise, with regard to the penalty for deportation,

“it does not . . . follow that a person can be banished from

this country upon no higher degree of proof than applies

in a negligence case.” Woodby v. INS, 385 U.S. 276, 285

(1966). Under the reasoning of these cases, where, as

here, the resolution of the fact issue can result in

imprisonment for twenty years, the degree of proof must

be beyond a reasonable doubt.

S The Common Law and State and Federal Practice.

At common law, and into the twentieth century, it

was nearly universally held that prior convictions must

be alleged in an indictment or information, and proved

prosecution. The point is that

states have traditionally required the allegation of a prior

conviction to be present in whatever formal charging document

—_

beyond a reasonable doubt to a jury. This Court's “pri-

mary guide in determining whether the principle in ques-

tion is fundamental is, of course, historical practice.”

Montana v. Egelhoff, __U.S.__, 116 S.Ct. 2013, 2017

(1996). The Constitution “must be read in the light of the

common law.” Schick, 195 U.S. at 69. The common law

“does ‘reflect a profound judgment about the way in

which law should be enforced and justice administered.’ ”

In re Winship, 397 U.S. at 361-62 (citations omitted). At the

time of the passage of the United States Constitution and

the Bill of Rights, the common understanding was that

facts, such as prior convictions, which formed the basis

for an increase in the maximum sentence, must be alleged

in the indictment and proved to a jury beyond a reason-

able doubt.

In People v. Sickles, 156 N.Y. 541, 51 N.E. 288 (1898),

the court was faced with a recidivist statute that raised

the maximum sentence. The court noted

The indictment . . . must bring the case within

the statute by setting forth the facts depended

upon for the imposition of the severer punish-

ment .. . This is necessary in penal proceedings,

in order that the defendant may be informed of

the charge which he is called upon to meet. . .

it is in accord with all just penal legislation. “In

a case such as this, the charge is not merely that

the prisoner has committed the offense speci-

fically described, but that,. . ., his second offense

has subjected him to an enhanced penalty. . . it

was an essential ingredient of the aggravated

and procedure each state utilized, which in this case is a grand

jury indictment.

offense, ..., that the alleged felony was com-

mitted after a former conviction

... and that the prior conviction entered into

and made a part of the offense of which the

accused was convicted.”

Id. at 544-45, 51 N.E. at 289 (emphasis added & citations

omitted). The court added that “as ‘a more severe penalty

is denounced by the statute for a second offense, all the

facts to bring the case within the statute must be estab-

lished upon the trial.’” Id. at 545, 51 N.E. 289 (citation

omitted). The court further noted that in England “the

former conviction is regarded as an element entering into

the grade of the guilt of the defendant, inasmuch as proof

must be made of it, and the jurors must deliver their

verdict upon that proof.” Id. at 546, 51 N.E. at 289-90.

The court went on to state that

In a sense, the prior offense was not an element

of the second offense, for they were discon-

nected acts; but the prior conviction so affected

the grade of the prisoner’s guilt and the degree

of his liability to punishment that, in that sense,

it entered into the offense of which he is con-

victed ... as a necessary and logical conclu-

sion, where an increased punishment is

prescribed .. . the prior conviction enters as an

ee into the criminality of the prison-

. it aggravates the guilt of the prisoner,

+ is subjects him to an increased punish-

ment...

Id. at 546-47, 51 N.E. 290 (emphasis added).

Later, after New York changed its laws and allowed

for a bifurcated, post-verdict proceeding, initiated by

information, the government had argued that the burden

to prove the prior conviction should be a preponderance

because this was not a trial on guilt or innocence. The

court responded that the proper burden remains beyond

a reasonable doubt because

[t]he proceeding determines a fact upon which

depends the extent of his imprisonment. To be

sure, his guilt of the crime for which he was

indicted has already been determined, . . . [but]

[t]he fundamental question is the same, and

the rights of the defendant are entitled to the

same protection in the one case as in the other.

People v. Brennan, 242 N.Y.S. 692, 694-95 (1930) (emphasis

added). The decisions in Sickles and Brennan reflect the

common law rule as well as the overwhelming authority

at the time.»

23 The cases in accord with the position that prior

convictions which raise the statutory maximum sentence must

be alleged in the indictment and/or proved to a jury beyond a

reasonable doubt are too numerous to list in toto, but some of the

more noteworthy cases are: Cosgriff v. Craig, 195 N.Y. 190,

194-95, 88 N.E. 38, 39 (1909) (if fact of prior conviction causes

increased sentence in range already subject to court's discretion,

no violation of individual rights, but if that fact increases the

maximum penalty that fact is an integral part of the offense

itself); Maine v. McClay, 146 Me. 104, 107-08, 78 A.2d 347, 350

(1951) (rule so “generally held” that a detailed review of the

authorities would serve no useful purpose”; relies upon “Tuttle

v. Commonwealth, 2 Gray, Mass., 505, at page 506: -” which states

the rule “is required by a rule of the common law, and by our

own Declaration of Rights, art. 12.”) (additional citations &

internal quotation marks omitted); People v. McDonald, 233

Mich. 98, 102, 105, 206 N.W. 516, 518, 519 (1925) (basis for rule is

that the “nature of the which the statute provides

may be inflicted is presumed to depend on the enormity of the

offense of which the accused has been convicted”); Long v. State,

Federal authority has also held that facts, such as

prior convictions, which increase the maximum sentence,

must be alleged in the indictment or information and

36 Tex. 6, 10 (1871) (a contrary position would “cut away so

much of the pillars of our liberty”); Riggins v. Stynchcombe, 231

Ga. 589, 592-93, 203 S.E.2d 208, 212 (1974) (even under a

bifurcated procedure must allege prior in indictment, based on

the right to grand jury indictment); People v. Casey, 399 Ill. 374,

378-79, 77 N.E.2d 812, 815 (1948) (“We can perceive of no

reason” for a different procedure because the fact at issue

“inflicts a penalty of additional years upon a defendant”; to

hold otherwise “would be contrary to the law of what is right

and just”); State v. Smith, 106 N.W. 187, 188-89 (lowa 1906) (the

rule is supported by “the uniform current authority”; a contrary

result “would amount to a travesty”); State v. Pennye, 102 Ariz.

207, 209, 427 P.2d 525, 527 (1967) (relies upon the presumption of

innocence); State v. Martin, 162 Wis.2d 883, 900-01, 470 N.W.2d

900, 907 (1991) (The rule is required to “meet the due process

requirements of a fair trial. When the defendant is asked to

plead, he is entitled to know the extent of his punishment.”);

State v. Furth, 5 Wash.2d 1, 11-19, 104 P.2d 925, 930-933 (1940)

(extended discussion of the case law and history; finding it is

the “general rule.”); State v. Ruble, 77 N.D. 79, 90, 40 N.W.2d 794,

800 (1950) (reviews history and concludes it is the “general rule

recognized in most jurisdictions”); State v. Waterhouse, 209 Or.

424, 428-433, 307 P.2d 327, 329-331 (1957) (detailed history of

common law); State v. Cobb, 2 Ariz.App. 71, 76, 406 P.2d 421, 426

(1965) (relies upon the presumption of innocence); Robbins v.

State, 219 Ark. 376, 380-81, 242 S.W.2d 640, 643 (1951) (general

rule; collection of authority); Lockmiller v. Mayo, 88 Fla. 96, 98-99,

101 So. 228, 229 (1924) (rule applies whether the prior conviction

is described as “merely an increased punishment” or as “a new

offense”); Evans v. State, 150 Ind. 651, 50 N.E. 820 (1898)

(collection of authorities); State v. Eichler, 248 lowa 1267,

1270-73, 83 N.W.2d 576, 577-79 (1957) (good collection of

authority); Roberson v. State, 362 P.2d 1115, 1119 (Okla. Crim.

App. 1961) (contrary position violates right to grand jury

indictment).

38 39

While in common parlance a verdict of guilty is

proved to a jury beyond a reasonable doubt. In Massey v. said to be a conviction, it must be given its strict

United States, 281 F. 293, 297-98 (8th Cir. 1922), the court legal meaning when a second off ia itieulin a

noted: reer: cre carrying with it heavier penalties.

tails e authorities overwhelmingly establish, ;

Statutes providing for greater punishment of that in the legal sense a sbtivtchion isa ices

second or subsequent offenses by the same per- on a plea or verdict of guilty; . . . , the indict-

son have long been in force in this country and ment, charging the accused of being a second

in England . . . and are to be found in the offender, must set forth the fact of the prior

legislation of nearly every state in the Union. It conviction, as that is an element of the offense in

is the established rule, under such statutes, the sense that it aggravates the offense

unless the statute designates a different mode of described in the indictment, and authorizes the

procedure, that, if the prosecutor desires to increased punishment.

invoke the severer punishment provided as to

second or subsequent offenders, the indictment This Court has also required that facts that increase

or information must allege the fact of the prior the maximum punishment must be alleged in the indict-

conviction, and the allegation of such conviction ment and proved to a jury beyond a reasonable doubt.

must be proved in the trial to the jury. . . . The

statement of a prior conviction is regarded as a

part of the description and character of the D. The Supreme Court Authority.

inl ket a oa grew meg rag __ This Court’s direct authority is that facts which

The accused is entitled to have the exact charge increase the maximum sentence must be alleged in the

against him stated in the indictment or informa- indictment and proved to a jury beyond a reasonable

tion, and to have the verdict of the jury upon the doubt. First, in Schooner Hoppet and Cargo v. United States,

fact of a prior conviction for the same offense, 11 U.S. 389 (1813), the Court, in an opinion written by

and of his identity with the person so convicted, Chief Justice John Marshall, stated:

and it is the duty of the government which

prosecutes to allege and prove the existence of with one crime and convicted of another, may

the prior conviction of the accused as a fact that

sometimes cover real guilt, but its observance is

may cause a severer penalty to be imposed. essential to the preservation of innocence. It is

only a modification of this rule, that the accusa-

tion on which the prosecution is founded,

The rule that a man shall not be charged

(Citations omitted; the court cited forty-two separate

cases and seven treatises.) should state the crime which is to be proved,

; and state such a crime as will justify the judg-

In Singer v. United States, 278 F. 415, 420 (3rd Cir. ment to be pronounced.

1922), cert. denied, 258 U.S. 620 (1922), the court held that

The reasons for this rule are,

ist. That the party accused may know

against what charge to direct his defence.

2d. That the Court may see with judicial

eyes that the fact, alleged to have been commit-

ted, is an offence against the laws, and may also

discern the punishment annexed by law to the

specific offence.

Id. (emphasis added). Thus, this Court long ago held that

one should be able to tell from the facts alleged in the

indictment or information the maximum sentence at

issue. The Court also held that, though there was a viola-

tion found, the sentence could not exceed that authorized

by the allegations in the information. Id. at 394.

In Chandler v. Fretag, 348 U.S. 3 (1952), the Court held

that a defendant had the right to an attorney in a case

where a prior conviction increased the maximum penalty.

The Court treated the issue as controlled by the rights a

defendant has in a criminal trial as explicated in Powell v.

Alabama, 287 U.S. 45 (1932).

In Chewning v. Cunningham, 368 U.S. 443 (1962), the

Court was again faced with a recidivist charge in which

the defendant, after being charged by information, was

sentenced to ten years in prison after a jury trial on the

issue. Again, the defendant claimed he had a right to an

attorney on the issue. This Court agreed. The Court noted

the court below conceded “that a proceeding under the

recidivist statute was ‘criminal’ and that in that proceed-

ing the accused was entitled to most of the protections

afforded defendants in criminal trials, ...” Id. at 445. The

Court referred to the recidivist allegation as a “charge”:

“It is ‘The nature of the charge’ . . . that underlines the

need for counsel.” Id. at 446. The Court also refers to the

proceeding as a “trial”: “[w]e only conclude that a trial

on a charge of being a habitual criminal is such a serious

one ... that the rule we have followed concerning the

appointment of counsel in other types of criminal trials

is equally applicable here.” Id. at 447 (emphasis added).

In Specht v. Patterson, 386 U.S. 605, 609 (1967), the

Court, following the unbroken line of common law deci-

sions referred to above, found that a defendant in a

hearing under a recidivist statute is entitled to the full

panoply of rights to ensure a fair trial. This is because the

hearing requires “a new finding of fact,” and because the

potential consequence was “criminal punishment... . ”

Id. at 608. The Court concluded:

‘A defendant in such a proceeding is enti-

tled to the full panoply of the relevant

protections which due process guarantees

in state criminal proceedings. He must be

afforded all those safeguards which are

fundamental rights and essential to a fair

trial, including the right to confront and

cross-examine the witnesses against

him.’ ...

.. . The case is not unlike those under recidivist

statutes where an habitual criminal issue is ‘a

distinct issue’ (Graham v. State of West Virginia,

224 U.S. 616, 625, . . . ) on which a defendant

‘must receive reasonable notice and an oppor-

tunity to be heard.’ Oyler v. Boles, 368 U.S. 448,

452,...; Chandler v. Fretag, 348 U.S. 3, 8,... Due

process, in other words, requires that he be pre-

sent with counsel, have an opportunity to be

heard, be confronted with witnesses against

him, have the right to cross-examine, and to

offer evidence of his own.

Specht, 386 U.S. at 609-10 (emphasis added & some cita-

tions omitted).

This Court has never altered this view. The rule is

that if the state establishes a maximum penalty based on

a certain set of facts, those facts must be alleged and

proved beyond a reasonable doubt in a jury trial. In other

words, the legislative body can determine what facts are

important enough to subject one to liability for a certain

range of punishment. But once it does so, those facts

must be alleged in a formal charging instrument required

for any criminal accusation, and proved beyond a reason-

able doubt in a jury trial. Cf. McMillan, 477 U.S. at 98

(Stevens, J., dissenting).

A comparison of this Court’s decisions in Mullaney v.

Wilbur, 421 U.S. 684 (1975), and Patterson v. New York, 432

U.S. 197 (1977), elucidates this point. In Mullaney, the

Maine statute provided that for a defendant to face a life

sentence, the state must prove that he acted with “malice

aforethought.” In Mullaney’s trial, the jury was told to

presume the existence of that fact. Thus, the state had

deemed “malice aforethought” to be a fact so important

that it must be proved to warrant the enhanced sentence.

Therefore, the state was required to prove that element

beyond a reasonable doubt. Patterson, 432 U.S. at 216

(discussing holding of Mullaney); see also id. at 221 (Pow-

ell, J. dissenting) (same).

The Court in M:jianey noted:

The safeguards of due process are not ren-

dered unavailing simply because a determina-

tion may already have been reached that would

stigmatize the defendant and that might lead to

a significant impairment of personal liberty. The

fact remains that the consequences resulting

from a verdict of murder, as compared with a

verdict of manslaughter, differ significantly.

Indeed, when viewed in terms of the potential

difference in restrictions of personal liberty

attendant to each conviction, the distinction

established by Maine between murder and man-

slaughter may be of greater importance than the

difference between guilt or innocence for many

lesser crimes.

Mullaney, 421 U.S. at 698.

In Patterson, the Court was faced with a statute that

exposed the defendant to the full range of punishment for

second degree murder if the state proved the defendant

both possessed the intent to cause death and did cause

the death of another. The state explicitly created an affir-

mative defense to the charge where the defendant acted

under extreme emotional disturbance for which there was

an adequate cause. The Court noted that “[iJt is plain

enough that if the intentional killing is shown, the State

intends to deal with the defendant as a murderer unless

he demonstrates the mitigating circumstances.” Id. at 206.

The Court also found that the states are free to define

offenses, and that the reasonable-doubt standard applies

to the state’s definition. In other words, the state is free to

determine what facts justify a certain punishment, and

those facts must be proved beyond a reasonable doubt;

but even this rule was subject to constitutional limits. Id.

at 211 n.12. The Court then examined the statute to deter-

mine if it went beyond the constitutional limits. The

Court was addressing the concern that traditional ele-

ments would be turned into affirmative defenses to evade

the requirements of Winship. The Court looked to the

common law, and found that the affirmative defense in

Patterson was a new creation. Furthermore, the closest

analogue, the defense that the defendant acted under

“the heat of passion upon sudden provocation,” was not

traditionally an element of the offense that the prosecu-

tion bore the burden of proving, despite recent trends.

Patterson, 432 U.S. at 202.

Here, the common law is clear that traditionally the

government does bear the burden of proving the prior

convictions in a jury trial if the convictions result in a

higher penalty range. Here, the legislature made the

higher penalty range applicable only if the fact of an

aggravated felony conviction is proved. There certainly is

no explicit legislative enactment as in Patterson indicating

that the defendant faces the higher punishment unless he

can prove he has no felony conviction.

This Court’s decision in Addington also clearly indi-

cates that the law requires proof beyond a reasonable

doubt of facts that would increase the maximum punish-

ment. In Addington, the Court required a higher standard

of proof than a preponderance of the evidence in a civil

commitment procedure. Addington, 441 U.S. at 432-33.

The Court pointed out that a greater standard of proof

than the preponderance standard applicable in negli-

gence cases is required when the government seeks to

take away a non-monetary, or liberty interest, such as

when it seeks to deport or denaturalize a citizen. Id. at

423-24. The Court did not require proof beyond a reason-

able doubt specifically because: 1) the loss of liberty was

not punitive, id. at 428; 2) “the layers of professional

review and observation of the patient’s condition, and the

concern of the family and friends generally will provide

continuous opportunities for an erroneous commitment

to be corrected,” i.e., the confinement depends on the

patient’s mental condition, and if he gets better, he can go

home, id. at 428-29; 3) if the patient is erroneously

released, he could suffer great harm, id.; and 4) the deter-

minative issue is so complex that, unlike the factual

issues in a criminal case, “there is a serious question

whether a state could ever prove [it] beyond a reasonable

doubt ...” Id. at 429. Here, the loss of liberty is 1)

punitive; 2) for a definite term of years; 3) the imprisoned

person would not be harmed by his release; and 4) the

determinative issue is a straightforward fact issue capa-

ble of resolution by jurors using the beyond-a-reasonable-

doubt standard of proof. Thus, Addington requires proof

beyond a reasonable doubt for facts which increase the

statutory maximum.

McMillan v. Pennsylvania, 477 U.S. 79 (1986), provides

further support for Petitioner’s position. There the Court

was faced with a statute that required a mandatory mini-

mum sentence if a sentencing court found, by a prepon-

derance of the evidence, that the defendant had visibly

possessed a firearm during the commission of the offense.

Significantly, the mandatory minimum sentence was

within the range of punishment the defendant already

faced based on the facts found by the jury. The Court, in a

five to four decision, found that, under this scheme, the

Constitution did not require the state to prove this fact

issue beyond a reasonable doubt. Id. at 85-86. The maijor-

ity, on no less than four separate occasions, emphasized

that the finding of fact at issue did not increase the

maximum sentence beyond that already applicable based

on the facts found by the jury beyond a reasonable doubt.

Id. at 82, 83, & 87-88. The Court noted that the statute

... neither alters the maximum penalty for the

crime committed nor creates a separate offense

calling for a separate penalty; it operates solely

to limit the sentencing court’s discretion in

selecting a penalty within the range already

availeble to it without the special finding of

visible possession of a firearm. [The statute]

“ups the ante” for the defendant only by raising

to five years the minimum sentence which may

be imposed within the statutory plan. The stat-

to t the visible to be a

tail which wags the dog of the substantive

offense.

Id. at 88. In this case of course, the potential sentence has

increased from a maximum of two years to a maximum of

twenty years based on the existence vel non of a particular

fact. Thus, that fact must be proved beyond a reasonable

doubt. This fact finding is the “tail which wags the dog.”

It is the most important fact issue under the statute.

Furthermore, the majority to some extent relied upon

the fact that the state clearly, explicitly, and unequivocally

stated in the statute that the fact issue in question, the use

of a firearm, “shall not be an element of the crime and

notice thereof to the defendant shall not be required prior

to conviction,” and that the issue “shall be determined at

sentencing . . . by a preponderance of the evidence .... ”

Id. at 81 n.1. To the extent that the Court in McMillan

relied on Pennsylvania’s explicit declaration that visible

possession of a firearm was not an element of the offense,

McMillan is distinguishable from the case at bar where

there is no such declaration. On the contrary, as noted

above, Congress has referred to Subsection (b) of 8 U.S.C.

§ 1326 as an “offense.” See discussion in Section I. B.,

supra.

The majority in McMillan also relied upon the fact

that “petitioners do not contend that the particular factor

made relevant here — visible possession of a firearm — has

historically been treated ‘in the Anglo-American legal

tradition’ as requiring proof beyond a reasonable doubt

. ” Id. at 90. Here, the fact issue - whether the

detendent has peavieusly been convicted of 0 peter con-

viction — has historically been treated in the Anglo-Amer-

ican legal tradition as requiring proof beyond a

reasonable doubt.

The Constitution guarantees that every fact that must

be proved to increase the statutory maximum punish-

ment must, in a federal case, be alleged in the indictment,

and proved beyond a reasonable doubt to a jury.7* That

guarantee was violated in this case.

24 If this were not the case, how could a court comply with Rule

11(c) of the Federal Rules of Criminal Procedure, which requires the

district court to determine whether the defendant understands the

maximum possible penalty provided by law before accepting a plea

of guilty to an offense alleged in an indictment or information? The

court would not know that until the sentencing hearing, if the issue

were merely a sentencing issue.

Of course, this Court need not reach the constitu-

tional issues in this case if the Court decides the case as a

matter of statutory construction as urged in Section L,

supra. Likewise, the Court may avoid the constitutional

issues in this case by exercising its supervisory power

over the lower federal courts. E.g., Davis v. United States,

More importantly, a defendant woula be forced to make the

decision to plead guilty or go to trial based on his

of the offense alleged and the potential penalty,

only to have the penalty increase drastically after he has

foregone his rights. The subsequent imposition of penalty will

then be based on facts to which the defendant did not plead

guilty.

Also, a court would not know how to proceed under a

statute under which certain fact findings raise the penalty from

a petty offense to a felony offense such as 18 U.S.C. § 2701. In 18

U.S.C. § 2701, Congress created a statute that is divided into

three parts: “(a) Offense,” “(b) Punishment,” and “(c)

Exceptions.” The “punishment” section establishes a

of either six months under (b)(2), one year under

(b)(1)(A), or two years under (b)(1)(B). Certain facts determine

the differences in maximum penalties. The defendant does not

have a right to indictment if he ends up being sentenced under

(b)(2) or (b)(1)(A). But he would have a right to an indictment

under (b)(1)(B). Likewise the defendant would not have a right

to a jury trial under (b)(2) but he would have a right to a jury

trial if sentenced under (b)(1)(A) or (b)(1)(B). If it is not

necessary to allege in the indictment the facts that would justify

the higher maximum sentences, a court would not know, until

after the trial, and at whether the defendant had a

right to a jury trial and/or to a grand jury indictment in the first

place. It makes far greater sense to adhere to the common law

view, and that expressed by this Court so long ago in Schooner

Hoppet, that it is a fundamental requisite that the indictment or

information set out the facts necessary to justify the maximum

so that the court, and the defendant, will be able to

tell from the indictment or information what is at stake.

160 U.S. 469, 484-93 (1895) (requiring proof beyond a

reasonable doubt to prove defendant sane in federal

case); compare Leland v. Oregon, 343 U.S. 790, 797 (1952)

(Davis decision is a federal rule, not constitutional doc-

trine). The Court’s supervisory powers must be guided

by the common law, state and federal authority, and

considerations of justice. See United States v. Hasting, 461

U.S. 499, 505 (1983) (“[G]uided by considerations of jus-

tice, . and in the exercise of supervisory powers,

federal counts may, within limits, formulate procedural

rules not specifically required by the Constitution or the

Congress.”) (citation and internal quotation marks omit-

ted); cf. Victor v. Nebraska, _U.S.__, 114 S.Ct. 1239, 1248

(1994) (recognizing supervisory power over federal

courts and implying that supervisory power might be

used to require certain form of reasonable doubt instruc-

tion, over and above constitutional requirements). These

considerations compel the result that 8 U.S.C. § 1326(b)(1)

and (b)(2) sets forth separate offenses, and that each of

the facts set forth therein must be alleged in the indict-

ment and proved to a jury beyond a reasonable doubt.

CONCLUSION

For the foregoing reasons, the judgment of the

United States Court of Appeals should be reversed, and

the case should be remanded to that court with instruc-

tions to vacate the Petitioner’s sentence and to remand to

the district court for resentencing.

Respectfully submitted,

Perer Fieury*

Tmwotuy Crooks

Assistant Federal Public

Defenders

600 Texas Street, Suite 100

Fort Worth, TX 76102-4612

(817) 978-2753

Counsel for Petitioner

“Counsel of Record for Petitioner

APPENDIX A

A-1

APPENDIX A

Title 8, United States Code, Section 1326

§ 1326. Reentry of deported alien; criminal penalties

for reentry of certain deported aliens

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

alien who -

(1) has been arrested and deported to

excluded and deported, and thereafter

(2) enters, attempts to enter or is at any

time found in, the United States, unless

(A) prior to his reembarkation at a place out-

side the United States or his application for

admission from foreign contiguous territory, the

Attorney General has expressly consented to

such alien’s reapplying for admission; or (b)

with respect to an alien previously excluded and

deported, unless such alien shall establish that

he was not required to obtain such advance

consent under this chapter or any prior Act,

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 -

(1) whose deportation was subsequent to a

conviction for commission of three or more mis-

demeanors involving drugs, crimes against the

person, or both, or a felony (other than an

aggravated felony), such alien shall be fined

under title 18, imprisoned not more than 10

years, or both; or

A-2

(2) whose deportation was subsequent to a

conviction for commission of an aggravated fel-

ony, such alien shall be fined under such title,

imprisoned not more than 20 years, or both.

For the purposes of this subsection, the term “deporta-

tion” includes any agreement in which an alien stipulates

to deportation during a criminal trial under either Fed-

eral or State law.

APPENDIX B

——. +

B-1

Amendments to Title 8,

United States Code, Section 1326

1952 Version

§ 1326. Reentry of deported alien

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, unless (a) prior to

his reembarkation at a place outside the United

States or his application for admission from for-

eign contiguous territory, the Attorney General

has expressly consented to such alien’s reapply-

ing for admission; or (B) with respect to an alien

excluded and deported, unless such

alien shall establish that he was not required to

obtain such advance consent under this chapter

or any prior Act,

shall be guilty of a felony, and upon conviction thereof,

be punished by imprisonment of not more than two

years, or by a fine of not more than $1,000, or both.

———————EE———————————E— Oe ee. Ur | ae

B-2

1988 Version

(Additions in bold; deletions struck out)

§ 1326. Reentry of deported alien; criminal penalties for

reentry of certain deported aliens

(a) Subject to subsection (b) of this section, Aany 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, unless (a) prior to

his reembarkation at a place outside of the

United States or his application for admission

from foreign contiguous territory, the Attorney

General has expressly consented to such alien’s

reapplying for admission; or (B) with respect to

an alien previously excluded and ,

unless such alien shall establish that he was not

required to obtain such advance consent under

this chapter or any prior Act,

shall be guilty of a felony, and upon conviction thereof,

be punished by imprisonment of not more than two

years, or by a fine of not more than $1,000, or both.

(b) Notwithstanding subsection (a) of this section, in

the case of any alien described in such subsection -

(1) whose deportation was subsequent to a

conviction for commission of a felony (other

than an aggravated felony), such alien shall be

fined under title 18, imprisoned not more than

5 years, or both; or

(2) whose deportation was subsequent to a

conviction for commission of an aggravated

B-3

felony, such alien shall be fined under such

title, imprisoned not more than 15 years, or

both.

B-4

1990 Version

(Additions in bold; deletions struck out)

§ 1326. Reentry of deported alien; criminal penalties for

reentry of certain deported aliens

(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, unless (A) prior to

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 - ‘

(1). whose deportation was subsequent to a

conviction for commission of a felony (other

than an aggravated felony), such alien shall be

fined under title 18, imprisoned not more than 5

years, or both; or

B-5

(2) whose deportation was subsequent to a

conviction for commission of an aggravated fel-

ony, such alien shall be fined under such title,

imprisoned not more than 15 years, or both.

B-6 B-7

1994 Version (2) whose deportation was subsequent to a

conviction for commission of an aggravated fel-

(Additions in bold; deletions struck out) ony, such alien shall be fined under such title,

§ 1326. Reentry of deported alien; criminal penalties for pn ae eines See 5590 yee, te Goth.

reentry of certain deported aliens For the purposes of this subsection, the term “deporta-

(a) Subject to subsection (b) of this section, any alien tion” includes any agreement in which an alien stipu-

who - lates to deportation during a criminal trial under either

Federal or State law.

(1) has been arrested and deported, or >

excluded and deported, and thereafter

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 -

(1) whose deportation was subsequent to a

B-8

1996 I Version

(Additions in bold; deletions struck out)

§ 1326. Reentry of deported alien; criminal penalties for

reentry of certain deported aliens

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

who -

(1) has been arrested and deported, er has

been excluded and deported, or has departed

the United States while an order of exclusion or

deportation is outstanding, and thereafter.*

(2) enters, attempts to enter, or is at any time

found in, the United States, unless (A) prior to

his reembarkation at a place outside the United

States or his application for admission from for-

eign contiguous territory, the Attorney General

expressly

previously

alien shall establish that he was not required to

obtain such advance consent under this chapter

or any prior Act,

shall be fined under ¢tTitle 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 -

(1) whose deportation was subsequent to a

conviction for commission of three or

B-9

(2) whose deportation was subsequent to a

conviction for commission of an aggravated fel-

ony, such alien shall be fined under such ¢Title,

imprisoned not more than 20 years, or both:; or

For the purposes of this subsection, the term “deporta-

tion” includes any agreement in which an alien stipulates

to deportation during (or not during) a criminal trial

under either Federal or State law.

of this title who enters, attempts to enter, or is at any

time found in, the United States (unless the Attorney

General has expressly consented to such alien’s reentry)

shall be incarcerated for the remainder of the sentence

of imprisonment which was pending at the time of

deportation without any reduction for parole or super-

vised release. Such alien shall be subject to such other

penalties relating to the reentry of deported aliens as

may be available under this section or any other provi-

sion of law.

(4d) In a criminal proceeding under this section, an

alien may not challenge the validity of the deportation

B-10 B-11

order described in subsection (a)(1) or subsection (b) of 1996 II Version

this section unless the alien demonstrates that — (Additions in bold; deletions struck out)

(1) the alien exhausted any administrative : —_-

remedies that may have been available to seek § 1326. Reentry of deported removed alien; criminal

relief against the order; penalties for reentry of certain deperted

removed aliens.

(2) the deportation proceedings at which the :; , ;

order was issued improperly deprived the (a) Subject to subsection (b) of this section, any alien

alien of the opportunity for judicial review; who -

and (1) has been 7

(3) the entry of the order was fundamentally exeiuded—end—deported, denied admission,

unfair. excluded, deported, or removed or has

departed the United States while an order of

*This period is in the original. exehusion-or-deportation exclusion, deportation,

or removal is outstanding, and thereafter.

(2) enters, attempts to enter, or is at any time

found in, the United States, unless (A) prior to

his reembarkation at a place outside the United

States or his application for admission from for-

eign contiguous territory, the Attorney General

has expressly consented to such alien’s reapply-

ing for admission; or (B) with respect to an alien

previously exehrded—eand—deperted denied

admission and removed, unless such alien shall

establish that he was not required to obtain such

advance consent under this chapter or any prior

Act,

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 -

(1) whose deportation removal was subse-

quent to a conviction for commission of three or

more misdemeanors involving drugs, crimes

B-12

against the person, or both, or a felony (other

than an aggravated felony), such alien shall be

fined under Title 18, imprisoned not more than

10 years, or both;

(2) whose deportation removal was subse-

quent to a conviction for commission of an

aggravated felony, such alien shall be fined

under such Title, imprisoned not more than 20

years, or both; er

(3) who has been excluded from the United

States pursuant to section 1225(c) of this title

because the alien was excludable under section

1182(a)(3)(B) of this title or who has been

removed from the United States pursuant to the

Provisions of subchapter V of this chapter, and

who thereafter, without the permission of the

Attorney General, enters the United States, or

attempts to do so, shall be fined under Title 18,

and imprisoned for a period of 10 years, which

sentence shall not run concurrently with any

other sentence-; or

(4) who was removed from the United States

pursuant to section 1231(a)(4)(B) of this title

who thereafter, without the permission of the

Attorney General, enters, attempts to enter, or

is at any time found in, the United States

(unless the Attorney General has expressly

consented to such alien’s reentry) shall be

fined under Title 18, imprisoned for not more

than 10 years, or both.

‘For the purposes of this subsection, the term “deporte-

tion “removal” includes any agreement in which an

alien stipulates to deportation removal during (or not

during) a criminal trial under either Federal or State law.

B-13

this title who enters, attempts to enter, or is at any time

found in, the United States (unless the Attorney General

has expressly consented to such alien’s reentry) shall be

incarcerated for the remainder of the sentence of

imprisonment which was pending at the time of deporta-

tion without any reduction for parole or supervised

release. Such alien shall be subject to such other penalties

relating to the reentry of deported aliens as may be

available under this section or any other provision of law.

(d) Ina criminal proceeding under this section, an alien

may not challenge the validity of the deportation order

described in subsection (a)(1) or subsection (b) of this

section unless the alien demonstrates that -

(1) the alien exhausted any administrative

remedies that may have been available to seek

relief against the order;

(2) the deportation proceedings at which the

order was issued improperly deprived the alien

of the opportunity for judicial review; and

(3) the entry of the order was fundamentally

unfair.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.