2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-27-2009

USA v. Jose Rico-Hernandez

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4129

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Recommended Citation

"USA v. Jose Rico-Hernandez" (2009). 2009 Decisions. Paper 383.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-4129

___________

UNITED STATES OF AMERICA

v.

JOSE GUADALUPE RICO-HERNANDEZ,

 Appellant.

___________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2-07-cr-00744-1)

District Judge: The Honorable Berle M. Schiller

___________

Submitted Under Third Circuit LAR 34.1(a)

October 1, 2009

BEFORE: McKEE, CHAGARES, and NYGAARD, Circuit Judges.

(Filed: October 27, 2009)

___________

OPINION OF THE COURT

___________
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NYGAARD, Circuit Judge.

Appellant Jose Rico-Hernandez, an aggravated felon, pleaded guilty to the crime

of illegally re-entering the United States after deportation, a violation of 8 U.S.C. §

1326(a), (b)(2). He was sentenced to 72-months imprisonment, a term of supervised

release and, relevant to this appeal, fined $100,000.00. He appeals only the imposition of

the fine, arguing that it exceeds the maximum amount authorized by statute and that it is

violative of the Eighth Amendment’s prohibition against excessive fines. We will affirm.

Appellant is a citizen of Mexico and had entered the United States illegally. He

was convicted of aggravated assault in 2005 in Bucks County, Pennsylvania and while on

parole arrested by agents of the Immigration and Customs Enforcement agency (ICE). He

was deported in November of 2006. In October of 2007, Appellant was arrested in

Bensalem, Pennsylvania. Appellant was subsequently indicted on one count of illegal reentry by an aggravated felon after deportation. He pleaded guilty to this offense.

During his sentencing hearing, the Government urged the District Court to impose

a sentence that would have a deterrent effect. The Government pointed out that when

first deported, Appellant told ICE Agents that he “had no intention of abiding by the laws

of this country because he, in fact . . . would only get prosecuted if he got caught.” 

Opting for a sentence at the low end of the Guideline range, the District Court sentenced

Appellant to 72-months imprisonment, but levied a fine of $100,000.00 against the

Appellant.
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On appeal, Rico-Hernandez challenges only the imposition of the fine. However,

he argues neither the reasonableness of his fine nor that he lacks the ability to pay the

fine. Instead Rick-Hernandez submits that the fine was illegal because it exceeds the

statutory maximum permitted by the applicable statute. He maintains that his fine should

be set by whichever state criminal code he violated when he committed the aggravated

felony in 2005. This is incorrect as a matter of law. He pleaded guilty to a violation of 8

U.S.C. § 1326(b), which provides criminal penalties for the “re-entry of certain removed

aliens.” The statute reserves the harshest penalties for those illegal re-entrants who have

been previously convicted of an aggravated felony. United States v. Soto-Ornelas, 312

F.3d 1167, 1170 (10th Cir. 2002) citing 8 U.S.C. § 1326(b)(2). Section 1326(b) provides

for the imposition of a fine, but does not specify an amount. Therefore, the District Court

correctly turned to 18 U.S.C. § 3571 which sets the maximum amount of a fine for a

felony at $250,000.00. Because Rico-Hernandez’ fine of $100,000.00 does not exceed

the statutory maximum set forth in 18 U.S.C. § 3571(b)(3), it was not levied contrary to

law.

Rico-Hernandez also maintains that the fine violates the Excessive Fines Clause of

the Eighth Amendment to the Constitution. He failed to raise this argument before the

District Court, so we review for plain error. See United States v. Campbell, 295 F.3d 398,

404 (3d Cir. 2002). The Eighth Amendment’s Excessive Fines Clause limits the

Government's power to extract payments, whether in cash or in kind, as punishment for
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some offense. See Alexander v. United States, 509 U.S. 544, 558-59 (1993) (internal

quotation marks omitted). A fine violates the Excessive Fines Clause when it is grossly

disproportional to the gravity of the offense. United States v. Bajakajian, 524 U.S. 321,

334 (1998). 

As we have determined, the maximum fine for illegal re-entry into the United

States by an aggravated felon is $250,000.00. At $100,000, Rico-Hernandez’ fine is not

disproportionate to the statutory maximum fine of $250,000 per offense. See United

States v. Newsome, 322 F.3d 328, 342 (4th Cir. 2003) (finding no Eighth Amendment

violation for restitution order that was not disproportionate either to the actual loss or to

the statutorily authorized fine). We find no plain error and will affirm the imposition of

the fine by the District Court.