for a passport under a fictitious name. After serving 90 days in jail, the INS deported him for the third time on September 29, 1977.
Subsequently, petitioner was caught hiding on a ship arriving in New York. Once again, petitioner was arrested and charged with unlawful entry into the United States. The District Court, Eastern District of New York sentenced petitioner to one year imprisonment. Following this sentence, petitioner was taken into custody by the INS. Later, upon marriage to a United States citizen, the INS released Arroyo-Angulo on bond.
While on bond, petitioner was arrested for making false statements on a passport application. After entering a guilty plea, the Court sentenced Arroyo-Angulo to three years confinement at Levenworth Honor Camp ("Levenworth").
Arroyo-Angulo escaped from Levenworth on October 31, 1981. Petitioner remained at large until March 22, 1985 when he was arrested for cocaine distribution in Seattle, Washington. Arroyo-Angulo plead guilty, and the District Court of Kansas sentenced him to six years confinement, including one year to be served concurrently for the escape from Levenworth. At the conclusion of this sentence, Arroyo-Angulo was released to INS officials who deported him for the fourth time on January 8, 1991.
Ever the slow learner, Arroyo-Angulo reentered the United States sometime between January, 1991 and June 15, 1992. See Stipulation P 6. On June 15, 1992, petitioner was arrested and charged with conspiracy to violate the Comprehensive Drug Reform Act, in violation of New Jersey Statute Section 2C:5-2. When arrested, Arroyo-Angulo identified himself as Samuel DeLeon. A fingerprint comparison revealed his true identity.
The United States filed a criminal complaint against Arroyo-Angulo, charging him with violating 8 U.S.C. § 1326(a)(2), Reentry of A Deported Alien.
The government offered Arroyo-Angulo a plea agreement. Initially, petitioner rejected the plea agreement, forcing the government to prepare for trial. Two days before trial, however, Arroyo-Angulo consented to a stipulated trial and plead guilty.
At sentencing, the Court placed petitioner in Total Offense Level 22 and Criminal History Category V. As such, the United States Sentencing Guidelines (the "Guidelines") provided a sentencing range of 77 to 96 months. Largely due to petitioner's prior criminal conduct, this Court imposed the maximum term, 96 months.
Arroyo-Angulo now moves to modify this Court's sentence, claiming that he was denied effective assistance of counsel. Specifically, Arroyo-Angulo challenges his counsel's: (1) failure to object to the Court's use of the 1991 version of the Guidelines; (2) failure to ask for a downward departure under 18 U.S.C. § 3553(a); and (3) recommendation to proceed with a stipulated trial in lieu of a guilty plea.
As an initial matter, the Court recognizes that petitioner's pro se petition must be read liberally. See Boag v. MacDougall, 454 U.S. 364, 365, 70 L. Ed. 2d 551, 102 S. Ct. 700 (1982); Todaro v. Bowman, 872 F.2d 43, 44 n.1 (3d Cir. 1989). Despite the Court's liberal reading, the Court concludes that petitioner has not offered any sound basis on which to grant his motion; therefore, petitioner's motion will be denied.
II. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, petitioner must demonstrate: (1) deficient performance as a matter of constitutional law; and (2) prejudice from this deficient performance. See Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); see also McNeil v. Cuyler, 782 F.2d 443, 447-49 (3d. Cir.), cert. denied, 479 U.S. 1010, 93 L. Ed. 2d 709, 107 S. Ct. 654 (1986). A constitutionally deficient performance is one that falls "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Prejudice from deficient performance is shown where: "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The burden of proof rests with petitioner. See McNeil, 782 F.2d at 448. Thus, if petitioner does not prove both elements of this test--deficient performance and prejudice--this Court must dismiss his petition. See Strickland, 466 U.S. at 697.
a. Proper Version of Guidelines
At sentencing, this Court followed the 1991 version of the Guidelines. Petitioner claims this was error, arguing that the 1990 Guidelines should have been used. Petr's Br. at 4. The 1990 Guidelines impose a four-level increase to a defendant's base offense level where "the defendant previously was deported after sustaining a conviction for a felony." See U.S. Sentencing Guidelines Manual § 2LI.2 (1990). This version took effect November 1, 1990.
The 1991 Guidelines impose a stiffer penalty. This version requires a sixteen level increase where "the defendant previously was deported after a conviction for an aggravated felony . . . ." See U.S. Sentencing Guidelines Manual § 2L1.2 (b)(2) (1991). This version took effect November 1, 1991. Because of this difference, petitioner claims that he erroneously received an additional twelve point increase in his offense level.
To support this claim, petitioner asserts that he committed the crime of unlawful entry on February 20, 1991, the date he actually reentered the United States. Under petitioner's view, the Court should have applied the Guidelines in effect on that date (the 1990 Guidelines), rather than those in effect at the time of his arrest (the 1991 Guidelines).
Petitioner further argues that the application of the 1991 Guidelines to a crime committed on February 20, 1991 constitutes a violation of the ex post facto clause. Petitioner notes that an application of the 1990 Guidelines would decrease his offense level by twelve levels, thereby significantly reducing his sentence. Furthermore, petitioner claims that the failure of his counsel to argue this point amounted to ineffective assistance.
Petitioner's claim will be denied because his sentence does not implicate the ex post facto clause. Although petitioner first violated 8 U.S.C. § 1326 on February 20, 1991, when he unlawfully reentered the United States, he continued to commit this offense until he was "found" by INS agents in the United States; petitioner violated the law each day he remained in the United States undiscovered. Faced with similar facts, the Fifth Circuit held:
The clear language in 8 U.S.C. Section 1326(a)(2) provides three separate occasions upon which a deported alien may commit the offense : 1) when one illegally enters the United States; 2) attempts to illegally enter the United States; or 3) when a deported alien is found at any time in the United States. The plain words of the statute set out discrete points in time when the crime may be committed.
United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.) (holding that the offense of illegal entry was committed not only when the petitioner first unlawfully entered the country, but at the time INS agents discovered the petitioner) (emphasis added), cert. denied, 510 U.S. 858, 126 L. Ed. 2d 129, 114 S. Ct. 170 (1993).
Under similar circumstances, the Ninth Circuit held: "A violation of 8 U.S.C § 1326 for being found in the United States after a prior deportation is a continuing offense which continues so long as the alien remains in the country." United States v. Guzman-Bruno, 27 F.3d 420, 422-23 (9th Cir.) (emphasis added), cert. denied, 130 L. Ed. 2d 360, 115 S. Ct. 451 (1994). Thus, the court concluded: "Presence at any time subsequent to reentry is a crime subject to the penalties then in effect." Id. at 423.
In what appears to be an issue of first impression in the Third Circuit and this District, the Court agrees with the Fifth, Ninth and other Circuits that have established the three instances when an individual violates section 1326.
See, e.g., Gonzales, 988 F.2d 16 at 18. Here, petitioner unlawfully reentered the United States on February 20, 1991; his offense, however, continued until the INS obtained a warrant for his arrest on July 13, 1992, well after the effective date of the 1991 Guidelines. On this date, petitioner was "found" in the United States and was in violation of section 1326. Accordingly, under the 1991 Guidelines, the Court correctly enhanced petitioner's base offense level sixteen levels.
Moreover, because the correct Guidelines were used, petitioner's counsel did not engage in constitutionally deficient performance. Petitioner's ineffective assistance of counsel claim with respect to this point is, therefore, baseless.
b. Failure to Request Downward Departure
Petitioner next argues that his counsel's failure to request a downward departure under 18 U.S.C. § 3553(a) amounted to ineffective assistance of counsel. Sentencing courts are authorized to depart from the Guidelines where:
There exists an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.