1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-30-1995

United States of America v. DeLeon-Rodriguez

Precedential or Non-Precedential:

Docket 95-1299

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Recommended Citation

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 95-1299 

___________ 

UNITED STATES OF AMERICA 

v. 

JESUS RHADAMES DELEON-RODRIGUEZ 

 

 Jesus Rhadames-Rodriguez, 

 Appellant 

_______________________________________________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Criminal No. 94-cr-00447) 

___________________ 

Argued October 19, 1995 

Before: SCIRICA, COWEN and ROTH, Circuit Judges

(Filed November 30, 1995) 

 DAVID L. McCOLGIN, ESQUIRE (ARGUED) 

 ELAINE DeMASSE, ESQUIRE 

 Defender Association of Philadelphia 

 Federal Court Division 

 Lafayette Building, Suite 800 

 437 Chestnut Street 

 Philadelphia, Pennsylvania 19106-2414 

 Attorneys for Appellant 

 TIMOTHY S. SUSANIN, ESQUIRE (ARGUED) 

 Office of United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, Pennsylvania 19106 

 Attorney for Appellee 
2 
3 

__________________ 

OPINION OF THE COURT 

__________________ 

SCIRICA, Circuit Judge. 

 The central issue in this criminal appeal is whether 

8 U.S.C. § 1326(b)(2) makes a prior conviction for an aggravated 

felony an element of the offense, requiring proof for conviction, 

or whether it is a penalty enhancement provision under 8 U.S.C. 

§ 1326(a), which sets forth the elements of the offense. 

I. 

 On May 14, 1990, Jesus Rhadames DeLeon-Rodriguez, a 

citizen of the Dominican Republic, was convicted of delivery of 

cocaine in the Court of Common Pleas of Berks County, 

Pennsylvania and sentenced to eighteen to sixty months 

imprisonment. As a result of his conviction he was deported to 

the Dominican Republic on May 17, 1991. 

 On July 28, 1994 Rodriguez was again arrested in Berks 

County on drug related charges. After notification by the local 

police, the Immigration and Naturalization Service interviewed 

Rodriguez about his immigration status. During the interview 

Rodriguez admitted he had been deported in 1991 and that he had 

illegally reentered the United States in 1993 by boat at 

San Juan, Puerto Rico. After receiving Miranda warnings, 

Rodriguez invoked his right to counsel and no further questions 

were asked. 
4 

 Rodriguez was charged by the government with illegal 

reentry after deportation in violation of 8 U.S.C. § 1326(b)(2) 

(1994), which provides: 

Notwithstanding subsection (a) of this 

section, in the case of any alien described 

in such subsection . . . 

 (2) whose deportation was subsequent 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.1

 

 

1

1. 8 U.S.C. § 1326 (1994) provides: 

 (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 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 of 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 -- 

 (l) whose deportation was subsequent to a 

conviction for commission of three or more 

misdemeanors involving drugs, crimes against 

the person, or both, or a felony (other than 

an aggravated felony), such alien shall be 

fined under Title l8, imprisoned not more 

than l0 years, or both; or 

 (2) whose deportation was subsequent 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. 
5 

Rodriguez was convicted at a bench trial and sentenced to 

seventy-two months imprisonment.2 This appeal followed. We have 

jurisdiction under 28 U.S.C. § 1291, as well as 18 U.S.C. 

3742(a). United States v. Shoupe, 988 F.2d 440 (3d Cir. 1993). 

II. 

 The principal question raised in this appeal is whether 

a prior conviction for an aggravated felony is an element of 

8 U.S.C. § 1326(b)(2) or simply a condition triggering an 

enhanced penalty. At trial, Rodriguez sought dismissal of his 

indictment for failure to state an offense, because it omitted 

what he claims is an essential element of the offense --

deportation subsequent to a conviction for an aggravated felony. 

The district court held this was not an element of the offense 

and denied the motion.3 We exercise plenary review. 

 Several other circuits have already addressed this 

issue.4 Of those, all but one has held that § 1326(b)(2) is a 

 

2

2. At sentencing, the district court determined that Rodriguez 

had been deported after commission of an aggravated felony. 

3

3. The district court also determined that Rodriguez's motion 

to dismiss the indictment based on this alleged defect was 

untimely. On appeal, the government did not argue timeliness or 

waiver. Fed. R. Crim. P. 12(f) vests a district court with 

general power to determine that a party has waived a right to 

object or raise a defense after having failed to advance it in a 

timely manner. Yet Fed. R. Crim. P. 12(b)(2) delineates two 

objections, or defenses, which "shall be noticed by the court at 

any time during the pendency of the proceedings"--a failure to 

show jurisdiction in the court and a failure to charge an 

offense. See United States v. Cury, 313 F.2d 337, 343 (3d Cir. 

1963). In view of this, we believe the motion was timely. 

4

4. In United States v. Eversley, 55 F.3d 870 (3d Cir. 1995), we 

explained "we need not address the question ... whether 

§1326(b)(1) and (2) constitute sentence enhancement provisions 

rather than offenses distinct from § 1326(a)." Id. at 871 n.3. 
6 

sentencing enhancement provision. See United States v. PalaciosCasquete, 55 F.3d 557, 559 (11th Cir. 1995), petition for cert. 

filed (Sept. 5, 1995) (No. 95-5849); United States v. MunozCerna, 47 F.3d 207, 210 n.6 (7th Cir. 1995) ("the better view is 

that the subsections [of § 1326] are sentence enhancements); 

United States v. Cole, 32 F.3d 16, 18 (2d Cir.), cert. denied, 

115 S. Ct. 497 (1994); United States v. Crawford, 18 F.3d 1173, 

1177 (4th Cir.), cert. denied, 115 S. Ct. 171 (1994); United 

States v. Forbes, 16 F.3d 1294, 1297-30 (1st Cir. 1994); United 

States v. Vasquez-Olvera, 999 F.2d 943, 945 (5th Cir. 1993), 

cert. denied, 114 S. Ct. 889 (1994); but see United States v. 

Campos-Martinez, 976 F.2d 589 (9th Cir. 1992). Upon examining 

the language and structure of § 1326(b), we too are convinced it 

is a sentencing enhancement provision rather than an offense 

distinct from § 1326(a). 

 Section 1326(a) sets out the elements of the offense 

(arrest, deportation, and re-entry) and certain penalties (fine 

and two-year maximum imprisonment), while subsection (b)(2) sets 

forth no elements but only provides for stiffer penalties based 

on criminal history (after conviction of an aggravated felony). 

Section 1326(b) itself sets forth no elements of an offense.5 The 

language and structure make clear that § 1326 is a sentencing 

enhancement provision only. 

 The Court of Appeals for the Second Circuit shares our 

view that the structure of § 1326 as a whole demonstrates that 

 

5

5. Section 1326(b) is set out in full in footnote 1. 
7 

§1326(b) is an enhancement provision. United States v. Cole, 32 

F.3d at 18. The Courts of Appeals for the Fourth and Fifth 

Circuits reached the same conclusion under a "plain language" 

analysis of § 1326. Crawford, 18 F.3d at 1177; Vasquez-Olvera, 

999 F.2d at 945. 

 In addition, the title assigned to § 1326 supports the 

view that it outlines a single offense with varying penalties. 

Before the 1988 amendments, the section was entitled "Reentry of 

deported alien;" after the amendments, it reads ""Reentry of 

deported alien; criminal penalties for reentry of certain 

deported aliens." 8 U.S.C. § 1326. As the Fourth Circuit 

explained, "[t]his change in title indicates that, by amending 

§1326, Congress intended to create enhanced penalties for 

'certain' aliens who commit the underlying offense of unlawfully 

reentering the United States after having been previously 

deported, not to create a separate substantive offense." 

Crawford, 18 F.3d at 1177; see also Vasquez-Olvera, 999 F.2d at 

945; Palacios-Casquete, 55 F.3d at 560 (looking to "evolution of 

§ 1326 through its various amendments" to conclude it defines one 

substantive crime). 

 The Court of Appeals for the First Circuit also 

construes § 1326(b) as an enhancement provision, but relies 

principally on a public policy argument. Referring to 

evidentiary rules and decisional law, the court found strong 

policy reasons to exclude or limit information about prior 

convictions at trial, citing the possibility of undue prejudice. 

Interpreting § 1326(b) to require proof at trial of conviction of 
8 

a prior offense would contravene this principle. In the absence 

of explicit congressional direction, the court explained it was 

"reluctant to impose that burden on defendants." Forbes, 16 F.3d 

at 1300. 

 Only the Court of Appeals for the Ninth Circuit has 

reached the conclusion that § 1326(b)(2) is not an enhancement 

provision. The first appellate court to consider the question, 

it found the different subsections of 8 U.S.C. § 1326 delineate 

separate offenses, the elements of which must be proven at trial, 

not just at sentencing. See, e.g., United States v. AriasGranados, 941 F.2d 996 (9th Cir. 1991); United States v. 

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

Campos-Martinez, 976 F.2d 589 (9th Cir. 1992). While two earlier 

Ninth Circuit panels reached this conclusion without explanation, 

in United States v. Campos-Martinez, the Ninth Circuit set forth 

the reasons for its holding. Although citing the precedent of 

Arias-Granados, the court relied on its interpretation of 8 

U.S.C. § 1325 as a guide in interpreting § 1326.6 Section 

 

6

6. 8 U.S.C. § 1325(a) (1994) provides: 

Any alien who (1) enters or attempts to enter 

the United States at any time or place other 

than as designated by immigration officers, 

or (2) eludes examination or inspection by 

immigration officers, or (3) attempts to 

enter or obtains entry to the United States 

by a willfully false or misleading 

representation or the willful concealment of 

a material fact, shall, for the first 

commission of any such offense, be fined 

under Title 18 or imprisoned not more than 6 

months, or both, and, for a subsequent 

commission of any such offense, be fined 
9 

1325(a) makes illegal entry a crime with a maximum sentence of 

six months imprisonment. The same section provides that illegal 

entry after a previous conviction for illegal entry is a separate 

crime with a maximum two year sentence. Campos-Martinez, 976 

F.2d at 591. The court found that because "[s]ections 1325 and 

1326 are similar in structure, operation, purpose, and subject 

matter . . . section 1325 provides the best analogy" available in 

interpreting § 1326, and therefore § 1326 ought to be understood 

as delineating distinct offenses. Id. at 592. 

 We are not convinced. Instead, like the Second, Fourth 

and Fifth Circuits, we believe the language and structure of 

§ 1326 establish that § 1326(b)(2) is a sentencing enhancement 

provision rather than an offense distinct from § 1326(a). We 

will affirm the district court's denial of Rodriguez's motion to 

dismiss the indictment on the grounds it failed to state an 

offense. 

III. 

 Rodriguez contends the district court should have 

granted him a reduction in his offense level for having "accepted 

responsibility," under U.S.S.G. § 3E1.1.(a)(1994), which permits 

a reduction "[i]f the defendant clearly demonstrates acceptance 

of responsibility for his offense." 

 Whether a defendant has "accepted responsibility" is a 

factual matter and is reviewed under a "clearly erroneous" 

standard. See United States v. Rodriguez, 975 F.2d 999, 1008 

 

under Title 18, or imprisoned not more than 2 

years, or both. 
10 

(3d Cir. 1992). "The sentencing judge is in a unique position to 

evaluate a defendant's acceptance of responsibility. For this 

reason, the determination of the sentencing judge is entitled to 

great deference on review." Application Note 5 to U.S.S.G. 

§ 3E1.1. 

 A defendant bears the burden of establishing by a 

preponderance of the evidence that a reduction under this 

provision is warranted. Rodriguez, 975 F.2d at 1008. Rodriguez 

advanced several factors to support his request for an offense 

level reduction. Looking to his pretrial conduct, Rodriguez 

characterizes his interview with the INS agent as a "confession." 

Brief for Appellant at 4. As for his subsequent conduct, he 

contends that at trial he "did not contest any of the factual 

allegations of the government . . . did not deny or even move to 

suppress [his] confession, and . . . did not present any 

evidence." Brief for Appellant at 5. Moreover, Rodriguez 

characterizes his objections during trial as "purely legal ones," 

and points to his limited cross-examination of the government's 

witnesses. Also, near the end of the trial, Rodriguez sought to 

enter a Zudick guilty plea, conditioned on a determination of a 

preserved appellate issue. United States v. Zudick, 523 F.2d 

848, 851 (3d Cir. 1975). Overall, Rodriguez contends he 

effectively left unchallenged the government's case against him 

and contested only selected legal issues but not the central fact 

of the case -- that he had illegally reentered the United States 

after deportation. 
11 

 The district court disagreed. It found that 

Rodriguez's brief initial statements during the interview with 

the INS agent did not manifest an acceptance of responsibility. 

Furthermore, the court found the government was "put to the test 

in its offering of evidence." Among other challenges, Rodriguez 

contested the testimony of the police officer who found him in 

the United States subsequent to deportation; questioned the 

relevance of the government's evidence on INS deportation 

procedures and the credibility of evidence in the INS file; 

cross-examined the government's witness about his personal 

knowledge of Rodriguez's deportation; attacked the quality and 

accuracy of the government's fingerprint evidence; and sought to 

exclude INS exhibits and documentary evidence which went to an 

essential element of the offense and to the heart of the 

prosecution's case. 

 After examining the record we find no error. 

Application Note 2 to § 3E1.1 explains that a reduction is 

generally not meant to apply to a defendant who puts the 

government to its burden of proof at trial. While the 

Application Note adds that "[c]onviction by trial . . . does not 

automatically preclude a defendant from consideration for such a 

reduction," it suggests that a reduction should be granted only 

in "rare situations," such as when a "defendant goes to trial to 

assert and preserve issues that do not relate to factual guilt 

(e.g., to make a constitutional challenge to a statute or a 

challenge to the applicability of a statute to his conduct)." The 

district court found that Rodriguez "contested his factual guilt 
12 

. . . beyond a mere legal challenge." Appendix at 136a. We 

agree. 

IV. 

 We will affirm the judgment of conviction and sentence. 
13