Escolar Documentos
Profissional Documentos
Cultura Documentos
Per Curiam.
__________
Dominican
Republic, was
1991 after
having been
He
thereafter
permission.
returned
Upon
indicted on a single
and
(b)(2).1
received
deported to
that country
convicted of various
to
the
being apprehended
United
in July
in March
drug offenses.
States
without
1992, he
was
1326(a)
particular respect.
We find
no error
and
therefore affirm.
At issue
is a November 1,
1991 revision to
2L1.2 of
which governs
In
level
of
defendant
8,
provided
previously
for
was
the offense
4-level increase
deported
after
here.
"[i]f
sustaining
the
a
____________________
1.
conviction
for
felony,"
of
an aggravated
and
stated
that
"an
upward
U.S.S.G.
2L1.2
&
mandatory 16-level
felony
cases.
enhancement
U.S.S.G.
in
all
2L1.2(b)(2)
such
(Nov.
aggravated
1991).
The
the
penalty
for
[aggravated
felons]
to
United States v.
_____________
amendment's applicability
per
se, he
Sent. Tr.
already returned
at 7.
to this country
advance
In
warning
argues that
1326 is
his
the act of
view, because
by the time
the
he had
the amendment
without
an
opportunity
to
He concludes that,
inasmuch as deterrence
-3-
holding that
this
it lacked the
authority to do
determination de novo.
________
See,
___
so.
We review
(a
matter
hardly
unpersuasive for
free
three
of
doubt),2
reasons.
we find
First, it
his
runs
662 (1st
advised Smith at
penalty
Cir. 1994).
the time
for unlawful
The
INS there
of deportation
return was
two years
had erroneously
that the
maximum
of imprisonment
____________________
2. While defendant told the probation office that he had
reentered the country in
August 1991, he had earlier
submitted a sworn statement to INS officials indicating that
he had returned in February 1992. At sentencing, defendant
insisted this
latter statement
was the result
of a
misunderstanding (apparently due to his lack of facility with
the English language), and requested the opportunity to
establish, through the testimony of himself and his wife,
that the August 1991 date was the correct one.
Without
addressing this request, the court announced a contrary
finding. After first indicating that it lacked the authority
to depart downward, it stated:
I am not moreover persuaded that he did in
fact arrive in August of '91. He did tell I.N.S.
relied
on this
notice in
entitled to a downward
court that this was
departure.
to return,
We agreed with
justify such a
departure.
"countenance[d]
Smith's
A contrary
purposeful
because he
he was
the lower
that would
engage
in
20, 1994).
So here, defendant
at
is
[he] understood
minor."
the penalty he
would face to
be relatively
As a
of
aggravated
felons.
the one
such
United States v.
_____________
"lag
time" between
that
version,
an upward
Aymelek, 926
_______
(upholding upward
under
imposed here.
subsequently enacted
size of
Even
departure
F.2d 64, 71
in order
reasonable).
(1st Cir.
to
Cf.
___
1991)
departure imposed
to take account
of the
the increased
statutory penalties
in
-5-
is
misplaced.
alien
As we
have
recently explained,
occasions:
when
he or
under
she
1326
a deported
on three separate
(1) "enters"
the
country, (2)
See Rodriguez, 26
___ _________
F.3d 612,
1994).
Defendant
here was indicted for, and pled guilty to, the crime of being
"found
in" the
country following
deportation.
This
is as
much
acts
of entry
or
attempted entry.3
entitled
"Unlawfully
States."
(Emphasis added).
999
F.2d
38,
42-43
"informed [defendant]
following
criminal
his
Entering
(2d
amendment took
is
the United
Whittaker,
_________
Cir.
1993)
1326
he remained in
reentry,
prosecution when he
2L1.2
or Remaining in
_____________
that, if
illegal
Indeed,
he
would
adequately
this country
be
effect, defendant
had
subject
to
Once the
the opportunity,
and
____________________
3.
For this
reason, we
____________
same rationale, we held in
should
have
had an
increased
incentive,
to "conform
his
reasons, we agree
court that
2L1.2(b)(2) case,
the
downward departure
case because
that
imposed by
lower court in
of age of aggravated
departure in
either
direction may
be appropriate
in
"unusual" case).
Affirmed.
_________
-7-