On Appeal from the United States District Court for the Eastern District of Pennsylvania (Dist. Ct. No. 02-cr-00804-1) District Judge: Honorable James K. Gardner
Submitted Under Third Circuit LAR 34.1(a) June 24, 2004
Before: NYGAARD, McKEE, and CHERTOFF,* Circuit Judges.
Defendant Okocci Remoi, an alien, was convicted by a jury of knowingly preventing and hampering his deportation under a final order of removal. He was sentenced to sixty-four months imprisonment and two years of supervised release. Remoi appeals the conviction and sentence on the grounds (1) that the District Court erroneously instructed the jury regarding the burden of proof for Remoi's entrapment defense, and (2) that Remoi's previous conviction for criminal sexual contact with a helpless victim was incorrectly treated as a "crime of violence" for sentencing purposes. We have jurisdiction of the appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We will affirm the conviction. We vacate and remand to the District Court for resentencing under United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).
Briefly, the facts are as follows. Remoi was lawfully in the United States as a student at Rutgers University until he was expelled from school in 1990, based upon convictions for two counts of criminal sexual contact. The Immigration and Naturalization Service began deportation proceedings against Remoi in 1994. On September 21, 2001, the Board of Immigration Appeals issued a final order of removal against Remoi. He then filed a petition for habeas corpus (his third) challenging that order, but did not obtain a stay of removal.
By September 3, 2002, the INS had completed the arrangements necessary to return Remoi to his country of origin, Uganda. That day, two officers served Remoi with a warrant of deportation. Remoi was aware there was no stay in effect, but sought to telephone the district judge before whom his habeas petition was pending. That request was denied by the agents, who warned Remoi that if he failed to depart or sought to hinder his departure, he could be charged with a crime. Nevertheless, at the airport, Remoi physically resisted efforts to place him on the airplane. The agents decided to return him to custody.
A grand jury charged Remoi, who was subject to a final order of removal under 8 U.S.C. § 1227(a), with one count of knowingly preventing and hampering his departure pursuant to such an order, in violation of 8 U.S.C. § 1253(a)(1)(C). After a two day jury trial, Remoi was convicted. At sentencing, the District Court applied section 2L1.2 of the U.S. Sentencing Guidelines Manual, and assigned a base offense level of eight.
Remoi's sentence was subject to increase, however, because of the nature of the crimes that formed the basis of his removal. The Court adjusted the offense level upward by sixteen levels based upon Remoi's two prior convictions for criminal sexual contact in New Jersey, which the Court determined were "crimes of violence" within the meaning of section 2L1.2. The District Judge reached that determination by considering the presentence report, which explained that Remoi's sexual contact involved unauthorized sexual touching of female students who were intoxicated or incapacitated. Remoi was sentenced to a term of imprisonment of sixty-four months.
Remoi sought and obtained from the District Judge an instruction on the defense of entrapment. He argues now—although he did not object in District Court—that the instruction impermissibly shifted the burden of proof regarding this defense from the government to the defendant.
We need not determine whether the instruction taken as a whole was error, let alone plain error, because Remoi was simply not entitled to an instruction on the defense of entrapment. The factual predicate to the entrapment defense is some showing that the government induced the defendant to commit the crime. See United States v. Wright, 921 F.2d 42, 44 (3d Cir. 1990). Here, there was no evidence of inducement.
Remoi's theory is that the agents induced him to commit the crime by warning him against resistance to removal, and by rejecting his unlawful request not to be removed. To put it charitably, this argument is fanciful. There was no evidence that the agents suggested to Remoi that if he resisted them he might be able to avoid removal. To the contrary, they advised him that resisting removal would be a violation of the law. The agents also did not prompt Remoi to commit a crime when they refused to delay his departure so that he could telephone a judge. ...