On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 01-cr-00737) District Judge: Honorable Harvey Bartle, III
Before: Scirica, Chief Judge,*fn1 Ambro and Garth,
The opinion of the court was delivered by: Garth, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) April 25, 2003
This case involves appellant Seton Walter Bamfield's challenge to his sentence for conviction of violation of 8 U.S.C. § 1253(a)(1)(C), preventing or hampering departure of an alien subject to an order of removal.
Bamfield argues that because his offense of conviction was not listed in the Statutory Index (Appendix A) of the United States Sentencing Guidelines Manual, *fn2 the District Court was required by United States Sentencing Guideline (U.S.S.G.) § 2X5.1 to apply the most analogous guideline for the offense, and that the District Court erred in concluding that U.S.S.G. § 2L1.2 was the most analogous guideline.
As we will explain, we hold that U.S.S.G. § 2L1.2 is in fact directly applicable to convictions for violation of 8 U.S.C. § 1253(a)(1)(C), and that the failure to list this offense in the Statutory Index constitutes an inadvertent error on the part of the United States Sentencing Commission. We will therefore affirm the District Court's judgment of sentence on the grounds specified in this opinion. By this means, we call this error to the attention of the Sentencing Commission so that it may be corrected.
Seton Walter Bamfield is a native of Guyana who arrived in the United States in April 1991. According to the presentence investigation report (PSR), Bamfield was arrested in early November 1991 for menacing. Later that month, he was arrested for robbery. He was convicted of the robbery and was sentenced to a term of imprisonment of 18 to 54 months in 1992. He was again convicted in 1994 of attempted robbery, and received a sentence of three to six years. *fn3
Following this last conviction, the Immigration and Naturalization Service (INS) began deportation proceedings against Bamfield on September 30, 1994. An immigration judge ordered that Bamfield be deported in May 2000, and Bamfield's appeal was denied in October 2000. A final order of removal was issued on October 29, 2000.
The INS experienced a relatively long delay in receiving permission from Guyana for Bamfield's deportation there. Eventually, Guyana provided the INS with permission to deport Bamfield there, but the permission only allowed deportation on a single day, November 1, 2001.
Accordingly, on October 31, 2001, the INS took Bamfield from Berks County Prison, where he was being held, to INS offices in Philadelphia, where he was told by INS officers that he would be sent back to Guyana the next day. Bamfield was upset at this news. That evening, while Bamfield was held in INS's Philadelphia detention unit, he kicked and punched the doors and walls.
In the early morning hours of November 1, 2001, INS officers sought to remove Bamfield from that facility and take him to the airport so that he could be placed on a commercial flight to Guyana. As INS officers sought to take Bamfield from his holding cell to a van in the facility's parking garage to take him to the airport, Bamfield resisted. At trial, an INS officer testified ...