Thursday, September 23, 2010

Prior Illegal Reentry Was Aggravated Felony Where Judgment Listed § 1326(b)(2) as Statute of Conviction

One part of the "aggravated felony" definition doesn't get a lot of attention, perhaps because it seems superfluous. We're talking, of course, about 8 U.S.C. § 1101(a)(43)(O), which includes as an aggravated felony "an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another" part of the aggravated felony definition. Superfluous or not, § 1101(a)(43)(O) gets its day in the sun in Gamboa-Garcia.

Gamboa pleaded guilty to illegal reentry. She had two prior convictions:

  • 2001: accessory to murder in Montana;
  • 2004: illegal reentry, with an enhancement for having been deported after committing an aggravated felony (the accessory to murder).
The PSR urged that the 2004 illegal reentry conviction triggered an 8-level aggravated-felony enhancement under U.S.S.G. §2L1.2(b)(1)(C). Gamboa ultimately received a sentence within the resulting advisory Guidelines range.

Gamboa appealed. She argued that her accessory-to-murder conviction was not an aggravated felony, meaning that her 2004 illegal reentry conviction was also not an aggravated felony under § 1101(a)(43)(O). Instead, Gamboa argued, she should have received only a 4-level "any other felony" enhancement under §2L1.2(b)(1)(D).

The court of appeals disagreed, holding that both of Gamboa's priors were aggravated felonies. Along the way, the court threw in some troubling dicta concerning a defendant's ability to challenge an enhancement that had also been applied in a prior, unrelated proceeding.

First, the troubling dicta. In response to Gamboa's argument, the government
note[d] that courts are generally not required to reconsider prior convictions. See, e.g., Talbott v. Indiana, 226 F.3d 866, 870 (7th Cir. 2000) (“When enhancing the sentences of repeat offenders, federal courts are entitled to treat prior convictions as what they are, rather than what defendants say they should have been”). Allowing such attacks would render § 1101(a)(43)(O) essentially meaningless by undermining the finality of such convictions, requiring courts repeatedly to reconsider arcane issues regarding prior convictions. Gamboa’s proffered interpretation makes no sense, because defendants had a right to counsel in the prior convictions and could avail themselves of professional advice and the appellate process to correct any infirmities. The government’s argument is essentially that sentencing under the guidelines is complicated, but it has not become a variation on the movie GROUNDHOG DAY (Columbia Pictures 1993).
Since Gamboa's argument didn't involve a collateral attack on either of her priors—only an argument as to the proper classification of those priors in a new, unrelated proceeding—it is hard to see how her challenge to a guideline enhancement would affect the finality of the prior convictions.  Nor is it clear what basis there would be for applying some sort of preclusion doctrine in this situation.  Let's hope that this part of the opinion is just a recitation of the Government's position, rather than an expression of the court's view.

Fortunately, the court found it unnecessary to take sides on that matter. Unfortunately for Gamboa, that was because her
inherent premise—that her Arizona conviction was not for an aggravated felony—is wrong on its face. The [Arizona] judgment states that she pled guilty to “violating Title 8, U.S.C. § 1326(a), Illegal Re-Entry after Deportation, with sentencing enhancement pursuant to Title 8, U.S.C. § 1326(b)(2), a Class C Felony offense, as charged in the Information.” Gamboa thus admitted that she had been removed “subsequent to a conviction for commission of an aggravated felony.” Her guilty plea expressly eliminates the interpretive question she raises here.  The district court did not err in relying on the District Court of Arizona’s determination that Gamboa’s 2001 conviction was an aggravated felony, and it properly characterized her 2004 illegal re-entry conviction based on the earlier conviction.
The court went on to address Gamboa's other prior:
Even if we assume, arguendo, that the district court should have reconsidered Gamboa’s 2001 conviction underlying her 2004 aggravated felony conviction, the error is harmless because Gamboa’s accessory to first degree murder conviction also qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(S).
And what does § 1101(a)(43)(S) include? "[A]n offense relating to obstruction of justice . . . for which the term of imprisonment [imposed] is at least one year."  And what does "obstruction of justice" mean?  The court deferred to the BIA's decision in In re Espinoza-Gonzalez, which held that an accessory-after-the-fact conviction under 18 U.S.C. § 3 constitutes obstruction.  "The elements of accessory after the fact under 18 U.S.C. § 3 are essentially the same as those of the Idaho accessory statute Gamboa was convicted of violating[,]" so her conviction was for an aggravated felony.

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