Amicus Curiae Brief — Almendarez-Torres v. United States

Supreme Court of the United States

OCTOBER TERM, 1996

HUGO ROMAN ALMENDAREZ-TORRES,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

AMICUS CURIAE BRIEF OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

HUGO ROMAN ALMENDAREZ-TORRES

STEPHEN R. SADY Of Counsel:

Chief Deputy Federal Defender Barbara E. Bergman

101 S.W. Main Street, Suite 1700 —_ University of New Mexico

Portland, Oregon 97204 School of Law

503-326-2123 1117 Stanford Drive NE

Albuquerque, NM 87131

Counsel for Amicus Curiae 505-277-3304

40

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ........

SUMMARY OF ARGUMENT

ARGUMENT

IN THE STATUTE DESCRIBING CRIMES OF ILLEGAL

REENTRY AFTER DEPORTATION, THE PHRASES

“SUBSEQUENT TO A CONVICTION FOR COMMISSION OF A

FELONY” AND “SUBSEQUENT TO A CONVICTION FOR

COMMISSION OF AN AGGRAVATED FELONY” DESCRIBE

ELEMENTS OF THE OFFENSE WHICH MUST BE PLEADED BY

INDICTMENT AND PROVED BEYOND A REASONABLE

The Plain Meaning Of The Statute:

Subsections (b)(1) And (b)(2) Describe

ge oS cen ssc eceese se 6

The Structure And Context Of The Statute

Establish That Subsections (b)(1) And (b)(2)

Describe Separate Offenses

l. The Parallel Statute, Prohibiting

Evasion Of INS Inspection, Treats

The Prior Conviction As An

Element Of The Offense

The Ninth Circuit Has Consistently

And Rationally Interpreted

Subsection 1326(b) As Creating

Separate Offenses Based On The

Plain Meaning Of The Statute,

Construction Of The Statute With

Section 1325, And Prosecutorial

CONCLUSION

3. The Unique And Complex Proof

Requirements Regarding

“Convictions” And “Aggravated

Felonies” Under INS Law Militate

In Favor Of Treatment Of

Subsection (b) As Stating Separate

ELLA Cae edb ehic tk 4ns « |

4. Subsequent Immigration Legislation

Supports The Requirement Of

Pleading And Proof Of Subsections

SLi deka ede ede'

The Separation Of Powers Doctrine And

Traditional Respect For Full Prosecutorial

Discretion In Charging Decisions Support

Construction Of Subsections (b)(1) And

(b)(2) As Separate Offenses................

Construction Of Subsections (b)(1) And

(b)(2) As Separate Offenses Respects The

Rights To Grand Jury Indictment And Proof

Of Elements Beyond A Reasonable Doubt ..

The Decisions From Other Circuits Misapply

Controlling Rules Of Construction ..........

l. The Fifth Circuit, And Those

Relying on It, Adopted An Analysis

Unsuited To The Question Before

i SF

2. The First Circuit, And Those

Relying On It, Failed To Apply The

Applicable — Polici Reauiri

Treatment Of Subsections (b)(1)

and (b)(2) As Separate Offenses .....

14

a

27

27

TABLE OF AUTHORITIES

SUPREME COURT CASES

Bailey v. United States,

116 S.Ce S01 (1995) .................. ce,

Cannon v. University of Chicago,

441 U.S. 677 (1979) ..... 0000,

Chevron v. Natural Resources Defense Council,

467 U.S. 837 (1984) ...... 00,

Engel v. Davenport,

271 U.S. 33 (1926) ........ ppudeseeessesuecs

Garrett v. United States,

471 US. 773 (1985) ... 0006,

Graham v. West Virginia,

224U.S.616(1911) ... 20,

Granderson v. United States,

S11 U.S. 39(1994) 200.

Hubbard v. United States,

115 S.Ct. 1754 (1995)...................005.

Hurtado v. California,

EE Ae

In re Winship,

IE Pr

Kendall v. United States ex rel. Stokes,

12 Pet. (37 U.S.) 524 (1838)...................

Lewis v. United States,

445 U.S. 55 (1980)

McMillan v. Pennsylvania,

477 US. 79 (1986)

Moore v. Missouri,

159 U.S. 673 (1895)

Mullaney v. Wilbur,

421 US. 684 (1975)

Old Chief v. United States,

EE cor. oc ne penn oennns Ri aaee

Patterson v. New York,

432 U.S. 197 (1977)

Ratzlaff v. United States,

510 U.S. 135 (1994)

Rubin v. United States,

449 U.S. 424 (1981)

Santobello v. New York,

404 U.S. 257 (1971)

Smith v. United States,

360 U.S. 1 (1959)

United States v. Armstrong,

116 S.Ct. 1480 (1996)

United States v. Batchelder,

442 U.S. 114 (1979)

iV

“eee eevee eneeewneeeneeneneneneneenenennennnenenennee

“eevee eevee eneneenenneneneneneenneen ene ee eee ee ee

ee |

- —. «=, es “

Vv

United States v. Campos-Serrano,

Ee ee ee ee 29

United States v. Gaudin,

EERE i ot EMO Pe Se Ey en ms 26

United States v. Gonzales,

I a ee a 6

United States v. Nixon,

EH Ms eo ee eee F 20

United States v. R.L.C.,

EE, A eee eS ee Ee eee 30

United States v. Ron Pair Enterprises, Inc.,

IEE ES ee er a aes ere 6

CIRCUIT COURT CASES

Marino v. INS,

me 15

United States v. Anton,

i eo ks a diveacees 22

United States v. Arambula-Alvarado,

ee 9,10

United States v. Arias-Granados,

I es 11-13

United States v. Arriaga-Segura,

a ee 10

vi

United States v. Campos-Martinez,

of rere tre 12, 13

United States v. Cruz-Flores,

OD . . . icc etn deeaects ct deuce ae

United States v. Davis,

Se EE, ED occ cc ccccctabnbdidesvedeueet 28

United States v. Estrada-Plata,

57 F.3d 757 (9th Cir. 1995) _...... westebleddess aii 25

United States v. Forbes,

ee ee 19, 29, 30

United States v. Gomez-Rodriguez,

96 F.3d 1262 (9th Cir. 1996) (en banc) ................ 14,17

United States v. Gonzalez-Medina,

SN ED cnsee cedevedubdbssudecsn 13,14

United States v. Henry,

CL ED. ci lasés’ Vebudeshciesce 22

United States v. Munoz-Carna,

ED onc c cde dened seéaNvevabeesen 17

United States v. Oliver,

ee os en deddubacnsbusbed 14

United States v. Pena-Cabanillas,

ID occ odd cdccdndscedarecdvctea 22

United States v. Thomas,

70 F.3d 575 (11th Cir. 1995), cert. denied,

ee en cdtias deans 24

vii

United States v. Ulilyses-Salazar,

28 F.3d 932 (9th Cir. 1994), cert. denied,

Se ee ee I 24

United States v. Valdez,

Sn eg ale 27

United States v. Vasquez-Olvera,

ee 19, 27-29

DISTRICT COURT CASES

United States v. Vieira-Candelario,

I Sg. wc cb ecew'e we cedccscueen 19

U.S. CONSTITUTION

TE os cs ec a paubceenkewduestedleds 26

STATUTES & RULES

te ied ne su adwedsbadocuudbeal 22

EN <M ES Se aE Ps aeons 16

EE, Mie, « Cukde vealdnveNdu¥s Gadus cataeenis 17

ETS a ee ne 4, 8-10, 12, 20

tees ve ci kee dda weave 2-4, 6, 8-20, 25-30

DS. dio Hut eidude Niece deedieeh indtos 21,27

ED Sy biineks innacessdecncduencéesesas 27

Supreme Court Rule 37(6) ..... 2... 6... 00sec ese ee es

OU GOIED gg cc cnccunncenchcvastleetatailes

62 Fed.Reg, 10,312 (March 6, 1997). .............5.

53 Fed.Reg. 9,281 (March 28, 1988) .................

Antiterrorism And Effective Death Penalty Act Of 1996,

Pub. L. No. 104-132, §440(e),

ae re eddcckececestseecncees

Responsibility Act of 1996 (IIRIRA),

Pub.L. No. 104-208, §322,

120 Seat. SODD-USTO (IGTS) ... ww. cee eee ences

Immigration Act of 1990,

Pub. L. No. 101-649, §501,

bs itd bb ccccccnctcnceecsweees ot

Pub. L. No. 100-690, §7342, 102 Stat. 4469 ...........

Pub. L. No. 104-132, §401(c),

SE eitadicvccives sances (déeentesdubenes

Pub. L. No. 104-208, §305,

ED asc ccccvecesvensesveqeerestes

UNITED STATES SENTENCING GUIDELINES

A i ei6b ces cece ct eseessussdtesecuns

UIE °Eblede coccerccccavadctausccevences

shbes 16

ix

INNES b miracle Wedeidedene tse ct sucunes shvenesvies 23

IEEE GAnGds Gb ddgh6dsub-cecvesadevonetetede ec 21

EE ti bbc d's bi Cheekdheerdaideceaveencdakks 23

IEE Neb pinvenetine Gaedevecsdesoonestdvacstic 21

OTHER

1 Stephen, A HisToRY OF THE CRIMINAL LAW OF ENGLAND ... 26

2B Norman J. Singer, SUTHERLAND STAT. ConsT. §51.01-03

(Sth ed., 1992 and 1996 Supp.) .... 6... ccc ccc cce cee. 10

Allen D. Bersin, “Reinventing Immigration Law Enforcement

In The Southern District Of California,” Federal Sentencing

Reporter, Vol. 8, No. 3 (March/April 1996) ................ 24

Dave Hogan, “Illegal Reentry Cases Soar In Oregon,”

The Oregonian, March 6,1995 ......... 2.0.06 0 660660055. 24

H.R. Conf. Rep. No. 104-828, §334(a) (1996) .............. 19

LaFave and Scott, | SUBSTANTIVE CRIMINAL LAW

I ah, es eee ks kee COME ys v4ves ee ees 21

Stephen Breyer, Federal Sentencing Guidelines And The Key

Compromises Upon Which They Rest,

ae adi ics cccnvccccccceccecs 2

U.S. Sentencing Commission, 1991-96 Datafiles, MONFY .... 21

William W. Wilkins, Jr., and John R. Steer, Relevant Conduct: The

Cornerstone Of The Federal Sentencing Guidelines,

re 21

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense Lawyers

(NACDL) is a District of Columbia non-profit corporation whose

membership is comprised of more than 9,000 lawyers and 28,000

affiliate members representing every state. Members serve in positions

bringing them into daily contact with the criminal justice system in the

state and federal courts. Members of the NACDL regularly represent

defendants charged in federal courts.

The NACDL is the only national bar organization working on

behalf of public and private defense lawyers. The American Bar

Association recognizes the NACDL as an affiliated organization and

awards it full representation in the ABA House of Delegates. The

NACDL is dedicated to the preservation and improvement of our

adversary system of justice. The Amicus Curiae Committee of the

NACDL has discussed this case and decided this issue is of such

importance to defense lawyers throughout the nation that the NACDL

should offer its assistance to the Court.'

The importance of this case to the NACDL membership

‘In accordance with Supreme Court Rule 37(6), counsel certifies that

no counsel for a party authored this brief, and no person or entity other than the

amicus curiae made a monetary contribution to the preparation or submission

of this brief.

2

derives from several major interests. First, the case affects a large and

growing class of defendants and potential defendants. Since 1991, the

number of persons sentenced for Section 1326 violations has increased

each year from 715 to 2,945.° The overwhelming majority of the

Section 1326 sentences were imposed in the Ninth Circuit.’ A ruling

adverse to the Ninth Circuit's recognition of the statutory elements

would affect charging practices and trial issues for great numbers of

defendants.

The persons affected are also unusually vulnerable to excessive

punishment. As aliens illegally in the country, they constitute a

According to the United States Sentencing Commission's data, the

increase in both raw numbers sentenced under Section 1326 and as a

percentage of all persons sentenced was as follows:

1991 71S 2.1% 1994 1,389 3.5%

1992 757 2.0% 1995 2,032 5.3%

1993 1,066 2.5% 7 1996 2,945 69%

The statistical information here and elsewhere in the brief is derived from

public information maintained by the Sentencing Commission US.

Sentencing Commission, 1991-96 Datafiles, MONFY 91-96.

*The yearly totals in the Ninth Circuit in raw numbers and as a

percentage of overall Section 1326 sentencings are as follows:

1991 399 553.1% 1994 810 58.3%

1992 396 52.3% 1995 1,262 62.1%

1993 602 56.9% 1996 1,835 62.3%

3

them from the political system but makes them a lightening rod for fear

and anger. This political vulnerability is reflected in the flurry of

legislation in this area. For many years, Section 1326 remained

untouched as a seldom-invoked, two-year, malum prohibitum status

offense. Since 1988, the statute has been amended to increase the

statutory maxima for those with felony convictions, first to five and

fifteen years, then to ten and twenty years. The Sentencing Guidelines

have been amended accordingly. While such legislative decisions are

not at issue, judicial procedures and the scope of prosecutorial

discretion should apply fairly to these outlanders.

The preservation of traditional rights is also at issue in this

case. The Fifth Amendment right to indictment and the due process

night to proof of each element of the offense beyond a reasonable doubt

are diminished by the view of the Fifth Circuit.

The parties have consented to the filing of this amicus curiae

brief. Consent letters from the parties have been forwarded to the Clerk

of the Court.

SUMMARY OF ARGUMENT

The plain meaning of Section 1326 defines separate offenses

—

4

in subsections (b)(1) and (b)(2), requiring pleading and proof beyond

a reasonable doubt. The statute incorporates by reference using the

phrase “any alien described in such subsection” to state all the elements

of a separate offense in each subsection. The statute itself provides

nothing to detract from the traditional view that each ingredient of the

offense must be pleaded and proved at tral.

The plain meaning view is strongly reinforced by the context

and structure of the statute. The adjacent statute, Section 1325,

contains two levels of punishment, the greater of which depends on a

prior conviction which must be pleaded and proved beyond a

reasonable doubt. Congress referred to subsection 1326(b) as an

“offense” in subsequent legislation. The complexity of factual and

legal questions to establish “subsequent to a conviction” and

“ageravated felony” under immigration law militate in favor of a

requirement of pleading and proof beyond a reasonable doubt.

The Ninth Circuit, from which over half the Section 1326 cases

are prosecuted, views subsection 1326(b) as enumerating separate

offenses. A ruling contrary to the Ninth Circuit position undercuts the

separation of powers doctrine and the imperative to afford the executive

branch the full range of its discretion in charging decisions and plea

5

negotiations. An array of policy considerations guide prosecutors’

decisions whether and how to charge an illegal reentry case.

Prosecutorial discretion is inappropriately limited by the stark options

of no prosecution or the alternatives of a petty offense or the twenty-

year maximum.

Traditionally, each fact that must be established to impose the

maximum punishment must be charged as an element under the Fifth

Amendment’s Indictment Clause and proved beyond a reasonable doubt

under the Fifth Amendment’s Due Process Clause. The statute should

not be construed to dilute the historical interposition of the grand jury

and the protections of pleading and proof beyond a reasonable doubt.

ARGUMENT

IN THE STATUTE DESCRIBING CRIMES OF

ILLEGAL REENTRY AFTER DEPORTATION,

THE PHRASES “SUBSEQUENT TO A

CONVICTION FOR COMMISSION OF A

FELONY” AND “SUBSEQUENT TO A

CONVICTION FOR COMMISSION OF AN

AGGRAVATED FELONY” DESCRIBE

ELEMENTS OF THE OFFENSE WHICH MUST

BE PLEADED BY INDICTMENT AND

PROVED BEYOND A REASONABLE DOUBT.

A. The Plain Meaning Of The Statute: Subsections

(b)(1) And (b)(2) Describe Separate Offenses.

In construing a statute, its plain meaning is the guiding

6 7

principle. United States v. Gonzales, 117 S.Ct. 1032, 1034 (1997). adoption of an earlier statute by reference makes it as much a part of

Bailey v. United States, 116 S.Ct. 501, 506 (1995). When the text the later act as though it had been incorporated at full length. Engel v.

speaks with clarity to an issue, in all but the most extraordinary Davenport, 271 U.S. 33, 38 (1926); Kendall v. United States ex rel.

circumstances, inquiry into the meaning of the statute is complete. | Stokes, 12 Pet. (37 U.S.) 524, 625 (1838).

United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989), The statute states on its face (with the incorporation

Rubin v. United States, 449 U.S. 424, 430 (1981). highlighted):

Section 1326 on its face creates separate offenses in subsection

(b). Subsection 1326(a) describes certain aliens in subparagraphs (1)

and (2). Subsection 1326(b), as added in 1988, stated:

(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 .. .

(2) whose deportation was subsequent to a conviction

yrs om ao emma such alien

shall be... . (emphasis added).

Incorporation by reference, using phrases such as “described

in such subsection,” is a standard tool of legislative drafting. Indeed,

the immigration laws are rife with incorporations by reference.‘ The

hundreds of times to incorporate lengthy passages by reference.

(b) Notwithstanding subsection (a) of this section, in

the case of 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 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,

[3] 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;

[4] whose deportation was subsequent to a conviction

for commission of an aggravated felony, such alien

shall be fined under such Title 18, imprisoned not

more than 15 years, or both.

8

The statute unambiguously states separate elements, the addition of

which increase the maximum punishments. All the elements of the

offense are in subsection (b) itself. There is no suggestion of any other

approach.

B. The Structure And Context Of The Statute

Establish That Subsections (b)(1) And (b)(2)

Describe Separate Offenses.

The statutory structure and context of Section 1326 support the

conclusion that each subsection states a separate offense. See Bailey,

116 S.Ct. at 505-06; Hubbard v. United States, 115 S.Ct. 1754, 1758

(1995). Judicial construction of Section 1325, substantially predating

the creation of subsection (b), established that prior convictions had to

be pleaded and proved beyond a reasonable doubt. The same pattern

is followed in subsection 1326(b). The unique Immigration and

Naturalization Service definitions of “conviction” and “aggravated

felony” militate in favor of treating the separate facts as necessary

elements of the offenses, as does subsequent legislation.

1. The Parallel Statute, Prohibiting Evasion

Of INS Inspection, Treats The Prior

Conviction As An Element Of The

Offense.

At the same time it first enacted Section 1326, Congress

9

created in their present form parallel crimes for entering without

inspection, regardless of prior deportation. 8 U.S.C. §1325 (1994)

(amended 1996). This statute includes an increase in the statutory

maximum from six months to two years “for a subsequent commission

of any such offense, ... .”

The Ninth Circuit, by a panel including now-Justice Kennedy,

found that the government’s failure to prove a prior “conviction”

foreclosed the two-year offense. United States v. Arambula-Alvarado,

677 F.2d 51, 52 (9th Cir. 1982). Applying the Supreme Court’s

requirement that criminal statutes must be narrowly construed in favor

of the accused, the court held that “[aJbsent proof of a former

‘conviction,’ the appellant should not have been given a felony

sentence.” Jd.

The Ninth Circuit clarified its Section 1325 decision, holding

that proof of the “conviction” did not require a certified copy of the

judgment; other evidence could suffice. United States v. Arriaga-

Segura, 743 F.2d 1434 (9th Cir. 1984). In doing so, the court

reinforced the holding that the prior conviction was an element of the

offense: “The Government clearly must prove beyond a reasonable

doubt more than ‘a subsequent commission of any such offenses’: it

10

must prove an actual conviction.” Arriaga-Segura, 743 F.2d at 1436.

Separate offenses have been applied in practice for years.

When Congress promulgated subsection (b) in 1988, the legislature is

presumed to have known the judicial interpretations of the sister statute

and intended a consistent reading. See generally Cannon v. University

of Chicago, 441 U.S. 677, 696-97 (1979); 2B Norman J. Singer,

SUTHERLAND STAT. CONST. §51.01-03 (Sth ed., 1992 and 1996 Supp.)

(interpretation by reference to related statutes). The prosecutors and

courts in the Ninth Circuit proceeded to apply the Section 1325

construction to Section 1326 without difficulty .°

The Ninth Circuit first addressed subsection 1326(b) in

connection with the charging policy of the United States Attorney's

office in the Southern District of California. The government initially

charged the defendant, Mr. Arias-Granados, with reentry following a

‘The government, in its opposition to certiorari in this case, noted

the easy observance of the Ninth Circuit separate-offenses interpretation of

subsection 1326(b). Brief of the United States in Opposition at | 1.

11

deportation subsequent to a felony conviction, a “crime” then

punishable by a statutory maximum of five years. United States v.

Arias-Granados, 94\ F.2d 996, 997 (9th Cir. 1991). Pursuant to plea

negotiations, Mr. Arias-Granados entered a guilty plea “to one count of

8 U.S.C. §1326(a), simple reentry after deportation,” punishable by a

maximum of two years incarceration. 941 F.2d at 997. The parties and

the court treated the offenses as separate.

The only issue on appeal was whether the sentencing guidelines

based on the higher guideline for reentry after a felony conviction. The

court approved the exercise of charging discretion -- “A prior felony

conviction is an element of the crime with which appellants were

charged, 8 U.S.C. §1326(b)(1), but is not an element of the crime to

which they pleaded guilty, 8 U.S.C. §1326(a)” -- and affirmed the

sentences based on the applicability of the guideline enhancement as

relevant conduct under U.S.S.G. §1B1.3(a)(4). Arias-Granados, 94)

F.2d at 998. The court drew a clear line between charging discretion

that limited the statutory maximum and application of the guideline

range within that maximum sentence. /d.

12

before the Ninth Circuit again in United States v. Campos-Martinez,

976 F.2d 589 (9th Cir. 1992). There, the defendant pleaded guilty to

an indictment with no allegation of a prior conviction. The defendant

asserted the failure to plead the clement of subsection 1326(b)( 1) that

would increase the statutory maximum foreclosed a sentence in excess

of two years. The Ninth Circuit agreed.

The court found the statutory interpretation in Arias-Granados

was correct that “subsections 1326(a) and 1326(b)(1) describe different

crimes with different elements and maximum sentences.” Campos-

Martinez, 976 F.2d at 591. The court also found that Section 1325,

which the government conceded stated two separate offenses

distinguished by a prior conviction, supported its interpretation of the

face of the statute: “Sections 1325 and 1326 form the core of the

illegal entry prohibitions of the United States Code, and both statutes

provide that a previous criminal conviction may result in a longer

sentence.” Campos-Martinez, 976 F.2d at 591.° The court held the

“indictment must include the element that the person was convicted of

a prior felony.” Campos-Martinez, 976 F.2d at 592.

‘The court interpreted the statutes consistently based on similarities

“i structure, operation, purpose, and subject matter.” Campos-Martinez, 976

F.2d at 592.

13

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

1992), three defendants wwnt to trial on indictments in the District of

Washington that did not charge any prior offenses. The government did

not plead or prove the requisite facts for a subsection 1326(b)(1) or

(b)(2) offense. The court held that “the three subsections identify

different crimes, the elements of which must be proven at trial and not

simply at sentencing.” Gonzalez-Medina, 976 F.2d at 571. In doing

so, the court relied heavily on its earlier ruling in Arias-Granados,

holding that “[bJecause sections 1326(a) and 1326(b)(1) (and, a

fortiori, 1326(b)(2)) constitute separate crimes -- and not merely a

single offense with different sentencing criteria -- the government was

obligated to put on evidence of the defendants’ prior felony convictions

if it intended to prosecute them under subsection |326(b) instead of the

lesser included offense of 1326(a).” Gonzalez-Medina, 976 F.2d at

572.

In the court of appeals with jurisdiction over the most felony

Section 1326 prosecutions, the language and context of the statute

establish that Ҥ$1326(a) and (b) stand alone, cach with its own

elements and sentencing provisions.” United States v. Oliver, 60 F.3d

547, 553-54 (9th Cir. 1995). Recently, the Ninth Circuit reinforced its

14

view of the statute en banc when it upheld the dismissal of an

indictment under subsection 1326(b)(2) for failure to properly allege an

aggravated felony. United States v. Gomez-Rodriguez, 96 F.3d 1262,

1265 (9th Cir. 1996) (en banc).

3. The Unique And Complex Proof

Requirements Regarding “Convictions”

And “Aggravated Felonies” Under INS

Law Militate In Favor Of Treatment Of

Subsection (b) As Stating Separate

Offenses.

At the time Congress promulgated subsection (b), immigration

law provided unique and complex potential grounds for defenses which

militate in favor of requiring pleading and proof beyond a reasonable

doubt. Under applicable immigration law, a “conviction” was not final

unless all appeals were exhausted or the period to appeal had expired.

Further, amendments to the definition of “aggravated felony” created

factual questions regarding charging and proof.

a. The finality of a conviction under

subsection 1326(b) is a potentially

complex question of law and fact.

Under subsection 1326(b), the increase in maximum sentence

applies only where the deportation is “subsequent” to a felony or

aggravated felony. In Marino v. INS, 537 F.2d 686, 691 (2d Cir.

15

1976), the court provided a narrow definition of “convicted” under the

immigration laws:

[AJn alien is not deemed to have been “convicted” of

a crime under the Act until his conviction has attained

a substantial degree of finality...such finality does not

occur unless and until direct appellate review of the

conviction (as contrasted with collateral attack) has

been exhausted or waived.

The INS adopted regulations applicable to immigration crimes

codifying the case law.’ The agency’s construction of the term is

entitled to deference. Chevron v. Natural Resources Defense Council,

467 U.S. 837, 843 (1984).* -

The question whether the deportation is “subsequent” to a

conviction becomes a relatively complex factual question. If, for

example, the deportation follows quickly upon the imposition of a

sentence to time served or probation, the conviction will not be final at

"53 Fed.Reg. 9,281, 9,298 (March 28, 1988) (codified in 8 C.F.R.

§242.2(b) (1989)).

‘Congress adopted a new version of “conviction” in 1996. Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

Pub.L. No. 104-208, §322, 110 Stat. 3009-1570, 3009-1703 (1996) (codified

at 8 U.S.C. §1101(a)(48) (1996)). The INS later withdrew 8 C.F.R.

§242.2(b). 62 Fed.Reg. 10,312, 10,382 (March 6, 1997). The new definition

would not apply to Mr. Almendarez under the Ex Post Facto Clause. The

importance of the earlier definition of “conviction” is the light it sheds on the

offenses created by Congress in 1988 by promulgating subsection (b).

16

the time of the deportation because the time within which to appeal may

not have expired.

If an appeal is filed, the conviction may not become final for

months, or years, while the case wends its way through the appellate

courts. In fact, there is nothing in the record before this Court to

establish that Mr. Almendarez’s burglary convictions were not

appealed and still pending at the time of his deportation.

The need to focus the parties and the court on when the

judgment was final, and on the potential “subsequent” defenses,

militates in favor of treating as an element facts which may result in a

much lower statutory maximum.

b. Whether a felony is “aggravated”

under subsection 1326(b)(2) is a

potentially complex question of

law and fact.

An additional factual matter raised in subsection 1326(b) is

wihsther the prior offense is 2 filony or an agqveveted feleny, Congress

provided a definition of aggravated felony at 8 U.S.C. §1101(a)(43)

(1996). The definition of aggravated felony has changed several times

17

since the promulgation of 8 U.S.C. §1326(b).” The Ex Post Facto

Clause, as well as the statutory effective date, limit prosecutions where

the “aggravated felony” definition becomes broader, and inclusive of

the defendant, subsequent to the commission of the offense.'° The

function of focusing both the prosecution and the defense on the

question by formal notice and proof beyond a reasonable doubt favors

consideration of the fact -- “aggravated felony” -- as an element of the

offense."'

*In 1988, the initial definition generally included murder, drug

trafficking, and weapons trafficking. Pub. L. No. 100-690, §7342, 102 Stat.

4469, 4469-70. In 1990, the definition expanded to include crimes of violence

for which a term of at least five years imprisonment was imposed.

Immigration Act of 1990, Pub. L. No. 101-649, §501, 104 Stat. 4978, 5048.

In 1996, the definition was once again altered to be more

Antiterrorism And Effective Death Penalty Act Of 1996, Pub. L. No. 104-132,

§440(e), 110 Stat. 1,259, 1,277.

"See, e.g., United States v. Gomez-Rodriguez, 96 F 34 1262 (9th

Cir. 1996) (en banc); United States v. Munoz-Carna, 47 F.3d 207, 208-09

(7th Cir. 1995).

"'The need for notice and attention to this element in a criminal case

is especially important for three reasons: 1) INS law is a specialty area not

easily accessible to the uninitiated, 2) Section 1326 defendants are almost

always unable to retain private immigration lawyers, and 3) the numbers of

immigration specialists available through the Criminal Justice Act is limited.

18

4. Subsequent Immigration Legislation

Supports The Requirement Of Pleading

And Proof Of Subsections (b)(1) And

(b)(2).

In 1996 Congress added subsections (b)(3) and (b)(4) to

Section 1326.'? Each creates a new offense, mirroring the patterns of

subsections (b)(1) and (b)(2). The only difference is that, because of

minor changes in the description of the aliens, incorporation by

reference is not used. The subsequent legislation demonstrates the

legislative view of the relevant factors as elements of the offense.

Further, in 1996 Congress directed the Sentencing Commission

to address the new statutory maxima for subsection 1326(b) violations

created in 1994. In doing so, Congress referred to subsections

1326(b)(1) and (b)(2) as “offenses.”’* Although subsequent to

enactment, the reference reflects the view that the subsections are

separate crimes.

In the 1996 amendments, Congress used “penalties” in a broad,

generic sense denoting the consequences of punishable offenses

consisting of a number of elements. 8 U.S.C. §1326(c). This sheds

"Pub. L. No. 104-132, §401(c), 110 Stat. 1258, 1268; Pub. L. No.

104-208, §305, 110 Stat. 3009-1570, 3009-1666.

"H.R. Conf. Rep. No. 104-828, §334(a) (1996).

19

light on the use of the Section 1326 title of “criminal penalties for

certain deported aliens.” Rather than indicating a penalty section,

“penalty” is used, as it is throughout immigration statutes, in its general

sense. This supports the suggestion that some courts have read too

much into the title:

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

United States v. Forbes, 16 F.3d 1294, 1298 (1st Cir. 1994) (citing

United States v. Vasquez-Olvera, 999 F.2d 943, 949 (Sth Cir. 1993)

(King, J., dissenting)); see also United States v. Vieira-Candelario,

811 F.Supp. 762, 767 (D.R.1. 1993).

C. The Separation Of Powers Doctrine And

Traditional Respect For Full Prosecutorial

Discretion In Charging Decisions Support

Construction Of Subsections (b)(1) And (b)(2) As

Separate Offenses.

Congress intended to create separate offenses in subsections

(b)(1) and (b)(2) to facilitate the full exercise of prosecutorial

discretion. Prior to 1988, the only cases construing Section 1325

treated the two offenses as separate and amenable to the exercise of

20

prosecutorial discretion. The full range of charging discretion is

especially appropriate where many more people are guilty of the status

offense than can be processed through the courts or housed in the

prisons. Under both the constitutional separation of powers doctrine

and the statutory approval of prosecutorial discretion, Congress gave

full powers to the executive branch to carry out the laws.

The executive branch has exclusive discretion to decide

whether and how to prosecute a case. United States v. Armstrong, \16

S.Ct. 1480, 1486 (1996); United States v. Nixon, 418 U.S. 683, 693

(1974). This discretion includes whether to bring a charge with a

higher or lower statutory maximum. United States v. Batchelder, 442

U.S. 114, 124 (1979). The use of charge bargaining has been

specifically endorsed by this Court as “an essential component of the

administration of justice.” Santobello v. New York, 404 U.S. 257, 260

(1971).

cde cf tiatee diaeninn io Gn cunbeion stems

explicitly endorsed in and contemplated by the relevant statutes and

sentencing guidelines. The Federal Rules of Criminal Procedure

anticipate that the dismissal of charges may result from plea

agreements. Fed. R. Crim. P. 11(¢)(1)(A). The Sentencing Guidelines

21

expressly contemplate that, as a result of charging discretion, the

statutory maximum may become the guideline sentence, regardless of

the applicability of a higher guideline range. U.S.S.G. §5G1.1(a)

(1995). The Sentencing Commission specifically recognized that

oversight of agreements calling for dismissal of charges or an

agreement not to pursue potential charges “does not authorize judges

to intrude upon the charging discretion of the prosecutor.” U.S.S.G.

§6B1.2, comment. (1995).'*

The radical changes in criminal immigration law have required

creative prosecutorial approaches. For decades, many thousands of

aliens have been deported. Many thousands of these aliens returned to

__ the United States, drawn by financial need, family connections, and --

sometimes -- the desire to continue criminal activities. Prior to 1988,

with a two-year maximum sentence for reentry and parole guidelines

substantially lower, prosecutors generally brought charges in only the

most aggravated cases. These were easily disposed of as mala

“With respect to plea negotiations, the Commission basically left

matters as they were when the guideline system was promulgated. See

William W. Wilkins, Jr., and John R. Steer, Relevant Conduct: The

Cornerstone Of The Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 499

(1990), Stephen Breyer, Federal Sentencing Guidelines And The Key

Compromises Upon Which They Rest, 17 Hofstra L._Rev. 1, 30 (1988).

22

prohibita, regulatory-type offenses. '*

The stakes were substantially increased in 1988 with the

creation of the crimes of reentry after a felony, punishable by a

maximum of five years incarceration, and reentry after an aggravated

felony, punishable by a maximum of fifteen years incarceration.

Shortly thereafter, the statutory maxima were increased to ten years and

twenty years, respectively, transforming the offenses from Class E

felonies to Class C felonies. 18 U.S.C. §3559(a)(3) and (b).

Prosecutors had to decide how to allocate scarce resources where prison

beds would be unavailable to other offenders; an almost bottomless

source of potential defendants waited in prisons and neighborhoods, as

well as at the border; and defendants facing terms of many years in

prison were more likely to litigate fully.

Further complicating the prosecutor’s decision is the vast array

of factual settings. For example, there is no temporal limitation on the

prior deportation, so an alien who has lived lawfully in the country with

his family for thirty years after a probationary sentence for a small drug

"United States v. Pena-Cabanillas, 394 F.2d 785, 788-89 (9th Cir.

1968) (Section 1326 is a regulatory statute that describes a “typical mala

prohibita offense”), accord United States v. Henry, 111 F.3d 111, 113-14

(11th Cir. 1997) (citing cases), but see United States v. Anton, 683 F.2d 1011

(7th Cir. 1982) (lone circuit requiring proof of criminal intent).

23

transaction is treated under the Guidelines the same as a bank robber

who made express threats of death during the robbery.'° The INS

practice of scouring state jails and prisons for previously-deported

aliens frequently results in mandatory, consecutive federal sentences

because the Guidelines provide for concurrency or partial concurrency

only where the former sentence is unexpired. U.S.S.G. §5G1.3 (1995).

Aliens themselves are uniformly confused and incredulous regarding

the time they face -- in fact, for several years after the change in the

law, official Immigration and Naturalization forms erroneously listed

the maximum sentence for reentry as being only two years

imprisonment. '’

Because Congress created separate crimes, the exercise of

charging discretion provides a solution for the very limited number of

“Compare U.S.S.G. §2B3.1(a), (b)(1), and (b)(2)(F) (1995) with

U.S.S.G. §2L1.2(a) and (6)(2) (1995).

‘The circuit courts of appeals have uniformly held that the INS’s

erroneous advice in the Form |-294 regarding the statutory maximum is neither

a defense nor a basis for downward departure. See, e.g., United States v.

Thomas, 70 F.3d 575, 576 (11th Cir. 1995), cert. denied, 116 S.Ct. 1370

(1996), United States v. Cruz-Flores, 56 F.3d 461, 463-64 (2d Cir. 1995)

(“However inexcusable it may have been for the government to continue to use

outdated notices, every circuit court to consider this issue has found that

receipt of an erroneous Form |-294 does not provide a basis for limiting a

defendant’s sentence to two years”), United States v. Ullyses-Salazar, 28 F 3d

932, 936-37 (9th Cir. 1994), cert. denied, 115 S.Ct. 1367 (1995).

24

cases that could otherwise be prosecuted to the full extent of the law.

In several districts, United States Attorneys have implemented

programs whereby many more aliens can be prosecuted by making an

early and desirable guilty plea available. In the District of Oregon and

the Southern District of California, the United States Attorneys

responded to the large number of potential illegal reentry cases by

charging a lesser offense in exchange for rapid dispositions.'"* The

Ninth Circuit has expressly approved the Southern District of

California “fast track” policy:

In light of the overall crime problem in the Southern

District of California, the government chose to allow

§1326(b) defendants the opportunity to plead to a

lesser offense, if done so at the earliest stage of the

nothing wrong (and, quite frankly, a great deal nght)

with such a practice. The policy benefits the

government and the court system by relieving court

congestion. |

United States v. Estrada-Plata, 57 F.3d 757, 761 (9th Cir. 1995).

The results of these charging policies are readily apparent. In

the Ninth Circuit, the number of Section 1326 prosecutions increased

“Allen D. Bersin, “Reinventing Immigration Law Enforcement In

The Southern District Of California,” Federal Sentencing Reporter, Vol. 8, No.

3 (March/April 1996) at 256; Dave Hogan, “Illegal Reentry Cases Soar In

Oregon,” The Oregonian, March 6, 1995, at B-1.

25

from 399 to 1,835 between 1991 and 1996. Of the 1,436 increase in

sentences, 876 (61%) of the cases were from the District of Oregon and

the Southern District of California.

Congress acted rationally and well within the scope of

historical practice in providing prosecutors with several crimes that

could be applied to a single fact situation. Section 1326 should be

construed consistently with the separation of powers doctrine to provide

the executive branch with wide discretion in charging criminal aliens.

D. Construction Of Subsections (b)(1) And (b)(2) As

Separate Offenses Respects The Rights To Grand

Jury Indictment And Proof Of Elements Beyond

A Reasonable Doubt.

Section 132¢ - 4 be read consistently with historical,

procedural, and constitutional requirements of indictment and proof.

Due process and the Sixth Amendment require that the government

prove, and the jury find beyond a reasonable doubt, each element of an

offense. Mullaney v. Wilbur, 421 U.S. 684 (1975); In re Winship, 397

U.S. 358 (1970). Criminal statutes routinely require proof of a prior

conviction beyond a reasonable doubt. See Lewis v. United States, 445

U.S. 55 (1980); Moore v. Missouri, 159 U.S. 673, 676-77 (1895);

LaFave and Scott, | SUBSTANTIVE CRIMINAL LAW (Wést 1986) §1.8

26

at 69.

The Fifth Amendment requires that federal felonies be charged

by indictment. U.S. Const. amend. V.'’ The traditional requirements

that every ingredient of an offense must be charged and proved beyond

a reasonable doubt are of ancient provenance. United States v. Gaudin,

115 S.Ct 2310, 2313-15 (1995); Smith v. United States, 360 U.S. 1,

9 (1959).”

The historical practices have coalesced into federal procedural

rules which require an indictment stating the essential facts constituting

the offense charged (Fed. R. Crim. P. 7(c)(1)) and, at the time of a

guilty plea (not sentencing), advice regarding the nature of the charge

and maximum punishment (Fed. R. Crim. P. 11(c)(1)). The Court has

recognized that elements that increase statutory maxima are subject to

constitutional protections. McMillan v. Pennsylvania, 477 U.S. 79,

87-88 (1986); Mullaney, 421 U.S. at 698-99. The elements

interpretation of subection 1326(b) is supported by constitutional,

"Cf. Graham v. West Virginia, 224 U.S. 616, 627 (1911) (prior

conviction could be charged by information because night to grand jury

indictment is inapplicable to the states under Hurtado v. California, 110 U.S.

516 (1884)).

*See Patterson v. New York, 432 U.S. 197,215 (1977), | Stephen,

A History Or THE CRIMINAL LAW OF ENGLAND, at 281 (1883).

27

E. The Decisions From Other Circuits Misapply

Controlling Rules Of Construction.

The circuit courts outside the Ninth Circuit have found

subsection 1326(b) creates a “sentence enhancement.”’ United States

v. Valdez, 103 F.3d 95, 97-98 (10th Cir. 1996) (citing cases). The

plain meaning of the statute and its context contradict that position.

Two of the leading cases adopt an incorrect analysis in reaching their

conclusion.

1. The Fifth Circuit, And Those Relying on

It, Adopted An Analysis Unsuited To The

Question Before The Court.

In United States v. Vasquez-Olvera, 999 F.2d 943, 945 (Sth

Cir. 1993), cert. denied, 510 U.S. 1076 (1996), the Fifth Circuit, in

both the majority opinion and the dissent, adopted an analytical

framework based on an Armed Career Criminal Act case, United States

v. Davis, 801 F.2d 754 (Sth Cir. 1986). The Davis court, ns turn,

derived its analysis from Garrett v. United States, 471 U.S. 773

(1985). Davis, 801 F.2d at 756. Although there is overlap, the

Davis/Vasquez-Olvera approach is not helpful in the present case.

In Garrett, this Court considered whether proof of facts

28

supporting a predicate offense for a Continuing Criminal Enterprise

conviction violated the Double Jeopardy Clause. The Court did not

purport to create a methodology for determining what ingredients of an

offense must be pleaded and proved. The double jeopardy analysis

sheds little light on the construction of Section 1326. Mr. Almendarez

is not arguing that his prior burglary conviction forecloses prosecution

as a matter of double jeopardy.

As stated by the Vasquez-Olvera dissent, the Garrett

methodology reaches the result Mr. Almendarez seeks: |) incorporation

by reference renders subsection 1326(b) a unitary offense; 2) the degree

of increase forecloses treatment as a multiplier; 3) the title does not

create a separate penalty provision; and 4) as all agree, no separate

procedures are provided. Vasquez-Olvera, 999 F.2d at 948-49. The

same result is achieved through the plain meaning and context of the

statute, informed by the strict construction of criminal statutes and the

rule of lenity.

2. The First Circuit, And Those Relying On

It, Failed To Apply The Applicable

Policies Requiring Treatment Of

Subsections (b)(1) and (b)(2) As Separate

Offenses.

The First Circuit found Section 1326 to be ambiguous based

29

on its language and structure. United States v. Forbes, 16 F.3d 1294,

1298 (lst Cir. 1994). Then, instead of applying the rules for

construction of ambiguous criminal statutes, the court found the policy

against introduction of prior convictions to be decisive. Forbes, 16

F.3d at 1299-1301.

Once ambiguity is found, the narrow construction of criminal

statutes and the rule of lenity require relief for the defendant. This

Court requires strict construction of what constitutes a crime under the

immigration laws. United States v. Campos-Serrano, 404 U.S. 293,

297-98 (1971). The definition of criminal offenses is also subject to

the rule of lenity, whereby the interpretation saving the individual

defendant from prison is favored. Granderson v. United States, 511

U.S. 39, 54 & n.12 (1994); Ratzlaff v. United States, 510 U.S. 135,

148 (1994); United States v. R.L.C., 503 U.S. 291, 305 (1992).

Even beyond Mr. Almendarez’s particular circumstances, the

policies cited by the Forbes court incorrectly balance the interests of

defendants generally. The constitutionally-based interests in grand jury

indictment and proof beyond a reasonable doubt alone override other

interests. The dangers posed by proof of prior convictions have been

substantially mitigated by the Court’s ruling in Old Chief v. United

—

30

States, 117 S.Ct. 644 (1977) (stipulation to conviction obviates proof

of the offense). In 1996, 98.2% of all Section 1326 defendants pleaded

guilty. The number of defendants going to trial is minuscule compared

to those benefitting from charging discretion or defenses based on the

elements of the offenses.

CONCLUSION

The plain meaning of the statute is that subsections 1326(b)(1)

and (b)(2) describe separate offenses. This result is strongly supported

by the structure of the statute, traditional charging discretion, and

constitutional norms. The sentence in excess of the statutory maximum

of two years should be reversed.

Respectfully submitted,

Stephen R. Sady

Chief Deputy Federal Defender

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

503-326-2123

Counsel for Amicus Curiae, NACDL