Date of Prior Removal Is Element of Enhanced Illegal Reentry Penalties Under 8 U.S.C. § 1326(b); Fives Better Than Nines on Plain Error Review
Remember several months ago when the Ninth Circuit held that the date of a prior removal is an element of the enhanced penalties found in 8 U.S.C. § 1326(b), the illegal reentry statute? The Fifth Circuit has now joined suit, but disagrees with the Ninth Circuit on a separate issue: the test to apply for the third prong of plain error review.
Rojas was charged with illegal reentry. His indictment alleged that he had previously been removed, but did not allege a specific removal date or anything else about the removal. When Rojas pleaded guilty to the indictment, he admitted that he had been removed in 1988.
Fast-forward to sentencing: the presentence report alleged that Rojas was convicted of aggravated assault in 2003, and removed in 2006 after he completed his sentence for that crime. On that basis, the PSR contended that Rojas faced a statutory maximum penalty of 20 years' imprisonment under § 1326(b)(2), as well as a 16-level COV enhancement under guideline §2L1.2. Rojas did not object to the enhancements, and the district court sentenced him to 73 months' imprisonment.
Relying on Apprendi, Rojas argued on appeal that the 2006 removal could not be used to increase his maximum punishment because he did not admit that removal and a jury did not find that removal beyond a reasonable doubt. The Government countered that the removal, like the fact of a prior conviction, is simply a sentencing factor under § 1326(b)(2) and therefore not subject to the Sixth Amendment rule announced in Apprendi.
The court first explained why this matters. Under § 1326(a) ("simple" illegal reentry), a defendant who illegally reenters the United States after having been removed is subject to a maximum of two years' imprisonment. But under § 1326(b) ("aggravated" illegal reentry), a defendant who was removed "subsequent to" a conviction for certain specified offenses is subject to a maximum of ten or twenty years' imprisonment. Thus, in Rojas's case, "[b]ecause he was not convicted of aggravated assault until 2003, his 1988 removal, although sufficient to convict him of violating § 1326(a), could not form the basis of the enhancement in § 1326(b)(2), because it was not 'subsequent to' his conviction." Instead, the enhancement would have to rest on the 2006 removal. Hence the issue.
The court went on to hold that, because the temporal relationship between a removal and a prior conviction increases the statutory maximum penalty an illegal reentrant faces, the date of removal is a fact subject to the rule of Apprendi and must be admitted by a defendant or proved to a jury beyond a reasonable doubt. It recognized that Almendarez-Torres remains goods law, but also pointed out that the Supreme Court has refused to expand that case's holding to any fact other than the fact of a prior conviction. The court also rejected the Government's attempt to analogize a removal to recidivism, observing that
one of the reasons the Supreme Court has countenanced the use of a prior conviction to enhance a sentence is that a prior conviction is the product of procedures that encompass the constitutional guarantees of fair notice, reasonable doubt, and a jury. Removals, on the other hand, are not subject to the same constitutional requirements. Consequently, while a court may use a prior conviction with the knowledge that the defendant was given multiple constitutional protections, the same cannot be said for prior removals.
That means it was error for the district court to increase Rojas's punishment on the basis of the 2006 removal. And the error was plain due to cases such as Apprendi and Jones which refused to expand Almendarez-Torres's holding.
But what about substantial rights? The Fifth Circuit says an error affects substantial rights if it affected the outcome of the proceeding. Nevertheless, the Government urged that the court should apply a more stringent Ninth Circuit (!) standard in which "a defendant is required to raise reasonable doubt that a rational jury would have found him guilty of the sentencing element absent the constitutional error before a court may conclude that the defendant’s substantial rights were affected." Under that standard, Rojas would have to raise a reasonable doubt as to whether he was removed in 2006.
The court refused the Government's invitation, since the Fifth Circuit has never adopted the Ninth Circuit's reasonable-doubt test. Thus, "[g]iven that Rojas-Luna received a sentence of seventy-three months in prison when, absent constitutional error, his sentence would have been a maximum of two years, we have little difficulty in concluding that Rojas-Luna’s substantial rights were affect[ed]."
Okay, what about the last plain-error hurdle? Did the error seriously affect the fairness, integrity, or public reputation of the judicial proceedings? Yes. Unlike Cotton, there wasn't much evidence of the fact that jacked up the sentence:
In the present case, there was no trial at which evidence of Rojas-Luna’s 2006 removal might have been presented; there was only a plea colloquy at which the Government failed to set forth any evidence of the 2006 removal. The unsupported statement in Rojas-Luna’s PSR that he was removed in 2006 is not “overwhelming” evidence of the fact of his removal, particularly in light of the fact that there is no evidence in the record that Rojas-Luna ever agreed to the accuracy of the PSR.
(Yet another reminder of why a defendant may want to remain silent when the district court asks him to verify the factual allegations in the PSR.) Thus, the court exercised its discretion to correct the error and vacated Rojas's sentence.
Don't think this case is just about a narrow point of illegal reentry sentencing. The court's understanding of the limited nature of Almendarez-Torres could come in handy when challenging other statutes, as well.