# Petitioners Brief — Almendarez-Torres v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0086%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1998 - **Citation:** 523 U.S. 224 ## Text Dapreme Soni FILE \5) JUN 16 1997 OFEIGE OF THE CLERK D 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 aN 1. i 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? ii 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............... iv 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 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. (c) Any alien deported pursuant to section 1252(h)(2) 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 (c) Any alien deported pursuant to section 1252(h)(2) 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0086%3A5. Public record. Not legal advice.