Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

6-16-2004

USA v. Lennon Precedential or Non-Precedential: Precedential

Docket No. 02-4207

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Recommended Citation "USA v. Lennon" (2004). 2004 Decisions. Paper 551. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/551

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL Deputy United States Attorney for Policy and Appeals UNITED STATES COURT OF ROBERT A. ZAUZMER, Esq. APPEALS FOR THE THIRD CIRCUIT Assistant United States Attorney, Senior Appellate Counsel LINWOOD C. WRIGHT, JR., Esq. No. 02-4207 (Argued) Assistant United States Attorney Office of the United States Attorney UNITED STATES OF AMERICA 615 Chestnut Street Suite 1250 v. Philadelphia, PA 19106-4476

CHRISTINE ANNEMARIE LENNON, Counsel for Appellee

Christine A. Lennon, STEPHEN A. MORLEY, Esq. (Argued) Appellant Morley, Surin & Griffin 325 Chestnut Street Suite 1305-P Philadelphia, PA 19106 On Appeal from the United States District Court for the Eastern District of Counsel for Appellant Pennsylvania (Dist. Ct. No. 01-cr-00494-1) District Judge: Honorable Ronald L. Buckwalter OPINION

Argued: March 24, 2004 CHERTOFF, Circuit Judge. Christine Lennon appeals a final Before: ROTH, AMBRO and judgment of conviction and sentence CHERTOFF, Circuit Judges. entered by the District Court. Lennon pled guilty to being “found in the United (Filed: June16, 2004 ) States, having knowingly and unlawfully re-entered the United States” in violation of

(a) and (b)(2). PATRICK L. MEEHAN, Esq. Lennon claims that the District Court’s United States Attorney sentencing analysis violated her rights LAURIE MAGID, Esq. under the Constitution’s Ex Post Facto

1 clause. In part, this analysis turns on different Trooper’s vehicle with her car.2 defining the nature of the offense to which Lennon was sentenced to four years Lennon pled. We have jurisdiction under imprisonment, but was paroled to INS

and, for the reasons that custody for deportation due to her criminal follow, we will affirm. activity. I. Lennon was deported to her native Jamaica on September 24, 1993. Eleven Lennon entered the United States in months after being deported, Lennon re- 1981 at the age of 17 as a lawful entered the United States under the permanent resident. She is a single mother pseudonym Diedra Barlow. She neither of three children, all American citizens by applied for admission to the United States birth. She has maintained a close nor obtained the express consent of the relationship with her children and has Attorney General before she re-entered. provided for them despite receiving no See

(a). support from their three biological fathers.1 She also suffers from Graves’ Soon after her illegal re-entry, disease, an autoimmune disorder. Lennon resumed her violations of the law. She was convicted in 1996 of possession Lennon’s means of providing for with intent to distribute marijuana.3 That herself and her children have not always offense resulted in a sentence of sixty days been legal. In 1983, at age nineteen and imprisonment followed by three years only two years after assuming legal probation. Lennon also pled guilty to permanent residency in the United States, shoplifting three times in 1998, receiving Lennon committed a shoplifting offense. a probation sentence each of the last two She was convicted in 1988 and received a times. Additional shoplifting charges $300 fine. That year, Lennon was also charged with and convicted of violating the Pennsylvania Controlled Substance 2 In the arrest leading to the present Act, when drugs and drug paraphernalia charges, Lennon once again struck the were found in her apartment. She served vehicle of her arresting officers. She was 28 months of her 27 to 53 month sentence. apprehended by the Immigration and In 1992, she was convicted of aggravated Naturalization Service (INS) while in her assault on a New Jersey State Trooper. vehicle. Upon seeing the approaching Lennon led the Troopers on a high-speed agents, Lennon shifted her car into reverse chase that reached speeds over 100 miles and struck the INS vehicle that was parked per hour and ended when she struck a behind her and intended to block her escape. 1 3 The father of Lennon’s second Lennon pled nolo contendere in child, Ashley Esplante, was murdered in Los Angeles, California, Superior Court. Philadelphia in 1993.

2 remain pending against her in Cherry Hill, apprehension in 2001. That being so, the New Jersey; Upper Merion Township, Government advocated including as Pennsylvania; and Springfield Township, criminal history enhancements two of Pennsylvania.4 Grand larceny and grand Lennon's crimes that “occurred” for theft charges remain pending against her criminal history purposes fewer than ten in, respectively, Orange County and Palm years before her 1994 re-entry date but Beach County, Florida. more than ten years before the date in 2001 on which she was “found,” in the Lennon eventually came to the sense of being actually apprehended. attention of INS officials as a result of an anonymous tip and was apprehended on Lennon also argued that, whatever July 7, 2001. She was indicted for, and crime she was charged with, the 1993 pled guilty to, being “found in the United Sentencing Guidelines should apply States, having knowingly and unlawfully because her crime was completed upon her re-entered the United States” in violation illegal re-entry in 1994. The Government of

(a) and (b)(2) disagreed, pointing out that Section 1326 (hereinafter “Section 1326"). J.A. at 32. enumerates being “found in” as a criminal Section 1326(a) contains three separate offense that is distinct from unlawful re- offenses, phrased in the disjunctive: (1) entry. The Government argued that illegal re-entry, (2) attempted illegal re- because her “found in” violation was entry, and (3) being found illegally in the continuing, it was “committed” at the time United States. See United States v. she re-entered through the date when she DiSantillo,

(3d Cir. came to the attention of INS officials in 1980). 2001. Under that theory, the 1993 version of the Guidelines was inapplicable. At sentencing, Lennon contended that the indictment ambiguously charged In the alternative, Lennon argued her both with illegal re-entry, and with that the District Court should use the being illegally “found in” the United November 2000 version of the States. The Government asserted that that Guidelines—those in effect on the date Lennon was charged only with the “found she was apprehended by INS in” charge of Section 1326(a) and officials—rather than the November 2001 contended that such a violation is a version of the Guidelines—those in effect continuing one, starting on the date (or on the date she was sentenced. The approximate date) of her actual re-entry in Government contended that use of the 1994 and running through her November 2001 Guidelines was appropriate and gave rise to no Ex Post Facto issue. 4 Lennon was also charged with In imposing sentence, the District shoplifting in 1989 but the charges were Court first held that Lennon’s crime was dismissed.

3 committed on the date she was 57 months imprisonment. Lennon timely “found”—thus falling under the “found appealed and maintains that the District in” prong of Section 1326. The District Court violated her rights under the Court looked to the November 2001 Constitution’s Ex Post Facto clause. Guidelines, Section 2L1.2, to find We exercise plenary review over Lennon's base offense level to be 8. The the District Court’s interpretation of the District Court then applied the 16 point Sentencing Guidelines and constitutional enhancement in Section questions. See United States v. Cicirello, 2L1.2(b)(1)(A)—based either on Lennon's

(3d Cir. 2002); United aggravated assault convictio n States v. Spinello,

(3d (2L1.2(b)(1)(A)(ii)) or her possession with Cir. 2001); United States v. Figueroa, 105 intent to dis tribute conv iction F.3d 874, 875-76 (3d Cir. 1997). We (2L1.2(b)(1)(A)(i)). Next, the District review the District Court’s factual Court reduced her offense level by three findings for clear error, see Cicirello, 301 points for acceptance of responsibility F.3d at 137, and the District Court’s under Section 3E1.1 for a total offense application of those facts to the Guidelines level of 21. for an abuse of discretion. See Buford v. Finally, the District Court looked to United States,

(2001); Lennon's extensive criminal history in United States v. Zats,

, 185 order to assign her a criminal history (3d Cir. 2002). In this context, we score. The District Court did consider consider each of Lennon’s claims in turn. under Section 4A1.2(e) those of Lennon’s II. offenses that occurred more than ten years before her 2001 “found” date—implicitly The Ex Post Facto clause provides: holding that “found in” violations are “No Bill of Attainder or ex post facto Law continuing crimes—and assigned her four shall be passed.” U.S. CONST . art. I, § 9, criminal history points for those offenses. cl. 3; see also U.S. CONST . art. I, § 10, cl. The District Court assigned an additional 1. A law does not run afoul of the Ex Post 8 points under Section 4A1.2(e) for those Facto clause unless it retroactively “alters of Lennon’s crimes that occurred within the definition of criminal conduct or ten years before her “found” date. The increases the penalty by which a crime is District Court designated a total criminal punishable.” Cal. Dep’t of Corr. v. history category of V. The District Court Morales,

, 506 n.3 (1995); determined, however, that this criminal see also, e.g., Lynce v. Mathis, 519 U.S. history was overstated, and reduced it to a 433, 440-41 (1997) (citing Calder v. Bull, category IV, making her sentencing range

, 390 (1798)); United 57-71 months. See U.S. SENTENCING States v. Brady,

(3d Cir. GUIDELINES MANUAL § 4A1.3 (2001). 1996) (citing Cummings v. Missouri, 71 The District Court imposed a sentence of U.S. (4 Wall.) 227, 326-26 (1866)). The

4 Sentencing Guidelines—along with all 2001 Guidelines.5 statutes that impose or dictate The key to this argument is sentence—are, of course, subject to the Ex Lennon’s claim that the Section 1326 Post Facto clause. See Miller v. Florida, violation to which she pled guilty was

(1987); United committed in 1994, when she illegally re- States v. Kopp,

(3d Cir. entered the United States and when the 1991); see also U.S. SENTEN CING 1993 Guidelines were in force. First, GUIDELINES MANUAL § 1B1.11 (2003). Lennon asserts that the indictment is But a District Court is entitled to employ the Guidelines in place at the time of sentencing unless doing so would expose 5 Lennon argues that none of the the defendant to harsher penalties than enhancements in the 1994 Guidelines were in effect at the time the crime was would have applied to her. She contends committed. See United States v. Corrado, that her New Jersey aggravated assault

(3d Cir. 1995). In conviction would not have met the order to establish, therefore, that the Ex definition of “aggravated felony” under Post Facto clause requires the application the 1993 Guidelines because it was not “a of an earlier version of the Sentencing crime of violence . . . for which the term Guidelines, a defendant must show that of imprisonment imposed . . . is at least 5 the crime was committed at a time that the years.” U.S. SENTENCING GUIDELINES § earlier Guidelines version was in force and 2L1.2, cmt. n.7 (1993); 8 U.S.C. § that the earlier version is more favorable 1101(a)(43)(F) (1995). She concludes to him or her. See United States v. that, because none of the other Audinot,

(3d Cir. enhancements would have applied to her, 1990). her total offense level would have equaled A. the base offense level of 8. Neither party addressed whether Lennon’s 1988 Lennon first contends that the Pennsylvania controlled substance version of the Guidelines in force on the conviction would have qualified as an date of her 1994 re-entry—the 1993 aggravated felony under subsection Guidelines—should have been used to 1101(a)(43)(B) as “illicit trafficking in a calculate her sentence. Those guidelines controlled substance,” making the 1993 would have been more favorable to her G u i d e l i n e s’ a g g r a v a te d f e l o ny because, she argues, she would have enhancement nonetheless applicable to faced—before a reduction for acceptance her. Because it does not change our of responsibility—a total offense level of analysis, we assume that her 1988 8, rather than the level 24 the District Pennsylvania controlled substance Court calculated under the November conviction would not have qualified as an “aggravated felony” within the meaning of the 1993 Guidelines.

5 ambiguously worded to charge both the we need to discuss at some length. “re-entry” prong and the “found in” prong In DiSantillo, the defendant had of Section 1326.6 She invokes the “rule of been arrested and deported in 1962.

at lenity,” see United States v. Lainer, 520 130. He re-entered the United States in U.S. 259, 266 (1997), and argues that the 1970, under his own name and on an crime with which she is charged should be immigrant visa issued by the American deemed to be illegal re-entry in 1994 Consul General in Italy. But because of because the 1993 Guidelines are more his earlier deportation, that visa was lenient than the 2001 Guidelines under improper and DiSantillo’s re-entry was in which she was sentenced. violation of Section 1326.

This is not a reasonable application DiSantillo was not interviewed by of the rule of lenity. Notwithstanding the INS agents until 1976 and not reference to Lennon’s “re-entry,” the indicted—under Section 1326's “found in” indictment clearly charges her under the prong—until 1979.

He argued that the “found in” prong of Section 1326. See five-year statute of limitations for his United States v. Whittaker,

, “found in” violation began to run on his 40-41 (2d Cir. 1993) (concluding that re-entry into the United States and expired alien’s crime occurred for sentencing in 1975.

. The Government purposes on alien’s “found” date even argued that DiSantillo’s offense was a though the indictment charged all three continuing one, “effectively tolling the prongs of Section 1326). statute of limitations for as long as the Next, though somewhat obliquely, alien remain[ed] illegally in the country.” Lennon argues that even if her violation

. was being “found in” the United States We looked to the plain language of illegally, that offense occurred as a matter Section 1326 and held that the statute of of law at the time she illegally crossed into limitations for a “found in” violation the United States in 1994 through a begins on the date the alien comes to the recognized port of entry. This argument is attention of immigration authorities.

at on somewhat stronger footing, flowing from this Court’s decision in United States v. DiSantillo,

,7 which the statute of limitations has run on her “found in” violation. See DiSantillo, 615 6 Lennon does not assert, however, F.2d at 134-36. But Lennon that the ambiguity in the indictment unquestionably waived any argument she renders it duplicitous. may have had based on the statute of limitations by failing to raise that defense 7 We note that Lennon’s argument before the District Court. Accordingly, could be construed as a means of we voice no opinion with respect to that contending, by way of the back door, that defense.

6 135. Central to our holding was the fact with “knowledge” of an alien’s presence that DiSantillo had passed through a in the United States—does not extend to a recognized port of entry pursuant to an case such as this, where Lennon otherwise valid American-issued visa affirmatively concealed her identity. To under his own name. That being so, his hold otherwise would actually favor the re-entry was not surreptitious, and illegal entrants who affirmatively conceal immigration authorities had sufficient their identities over those who honestly notice of that re-entry to start the running use their own names.8 of the five-year statute of limitations for his “found in” offense. We contrasted, in a dictum, DiSantillo’s case with the 8 The Government urges that the example of an alien who enters the United crime of being “found in” the United States surreptitiously.

. States is a continuing offense, just in the Under those circumstances, we reasoned, same way that a conspiracy is. See, e.g., Congress did not intend the statute of United States v. Jake,

, 129 limitations for “found in” violations to n.6 (3d Cir. 2002). The argument has begin running against the Government on force; the passage of time does not give the date of the alien’s illegal re-entry into rise to a de facto amnesty that legalizes an the United States. Rather, as in the case of unlawful alien’s presence. But the DiSantillo’s non-surreptitious re-entry, the question of whether “found in” violations statute of limitations only begins to run are continuing crimes was addressed, to a once the Government is on notice of the limited extent, in our holding in alien’s illegal presence in the United DiSantillo.

. In the States. context of that case, we held that the In short, DiSantillo held that illegal “found in” prong did not codify a re-entry begins, for statute of limitations continuing crime.

Since that time, purposes, when the alien presents himself numerous other courts have taken non-surreptitiously (i.e., using his own positions that are, to varying degrees, to name) at an open point of entry even the contrary. See United States v. Ruiz- though immigration personnel failed to Gea,

(10th Cir. react. That makes some sense because the 2003); United States v. Mendez-Cruz, 329 Government has sufficient notice of the F.3d 885, 889 (D.C. Cir. 2003); United alien’s presence in the United States to States v. Lopez-Flores,

, 663 bear the burden of the running of the (7th Cir. 2001); United States v. Mendez- statute of limitations against it.

Here, Casillas,

(9th Cir. however, Lennon admits that she used an 2001); United States v. Ruelas-Arreguin, alias when she crossed into the United

(9th Cir. 2000); States. The logic of DiSantillo—that United States v. Reyes-Nava, 169 F.3d immigration authorities should be imputed 278, 279-80 (5th Cir. 1999)); United States v. Diaz-Diaz,

, 575

7 This reading of DiSantillo is any error by the District Court in this consistent with the decisions of other respect was harmless.9 Lennon concedes courts, holding that the offense of being that, excluding her pre-1991 crimes, her “found in” the United States illegally is criminal history score was a Level IV. “committed” when the alien comes to the The District Court here ultimately affirmative attention of INS officials. See sentenced her based on a criminal history United States v. Rodriguez,

, 8 of Level IV, arriving at the same (1st Cir. 1994); United States v. Gonzales, sentencing range as would have resulted

(5th Cir. 1993); had the District Court excluded Lennon’s Whittaker,

. Indeed, in pre-1991 crimes.10 Thus, any error by the Whittaker, the Second Circuit interpreted Section 1326 as we do here: Where an 9 alien unlawfully enters with a fictitious The Government argues that there name, even through a recognized port of is no error because Lennon’s offense was entry, he is “found in” the United States a continuing one, lasting from 1994 when actually discovered. Whittaker, 999 through 2001. This is arguably F.2d at 42. Accordingly, Lennon’s Section inconsistent with DiSantillo, but we need 1326 violation was “committed” when she not reach the question. was apprehended by INS officials in 2001. 10 At oral argument, Lennon’s Finally, Lennon observes that a counsel suggested that the District Court’s logical implication of a finding that her use of the older crimes might be error even crime was “committed” in 2001 is that her though the District Court applied the pre-1991 crimes should not have been lower criminal history level. Lennon’s used as sentencing factors, since they counsel speculated that the District Court “occurred” for sentencing purposes before might have been inclined to reduce the the Guidelines’ ten year look-back period criminal history category irrespective of as measured from her “found” date. But whether that history reflected her pre-1991 crimes. All things being equal, the argument runs, if the District Court had (8th Cir. 1998); United States v. not included her pre-1991 crimes but still Castrillon-Gonzales,

, 406 found her criminal history to be (11th Cir. 1996); see also United States v. overstated, her sentencing range—and Almendarez,

, (4th Cir. presumably her sentence—would have 2001) (unpublished per curiam). But see been that much lower. Apart from being United States v. Rivera-Ventura, 72 F.3d pure speculation, Lennon’s counsel’s 277, 280-82 (2d Cir. 1995). Perhaps this argument was not advanced in her briefs. should cause a re-examination of our For the same reason that we will not holding in DiSantillo. But we need not consider an argument minted at the reply confront the continued viability of brief stage, we will not consider an DiSantillo in this case. argument made by counsel for the first

8 District Court in initially considering Aggravated felonies that Lennon’s pre-1991 crimes for criminal trigger the adjustment from history purposes was harmless. See subsection (b)(1)(A) vary United States v. Knight,

, widely. If subsection 208 (3d Cir. 2001) (noting that a (b)(1)(A) applies, and (A) sentencing error need not be remanded if the defendant has “the record shows that the sentence was previously been convicted unaffected by the error.”); United States v. of only one felony offense; Thayer,

(3d Cir. 1999). (B) such offense was not a crime of violence or B. firearms offense; and (C) The only remaining question, then, the term of imprisonment is whether the District Court should have imposed for such offense used the November 2000, rather than the did not exceed one year, a November 2001, version of the downward departure may be Guidelines. warranted based on the seriousness of the Lennon argues that the November aggravated felony. 2000 version of the Guidelines was more favorable to her because the November 2001 Guidelines eliminated the downward U.S. SENTENCING GUIDELINES MANUAL § departure provision under Section 2L1.1. 2L1.2 cmt. 5 (November 2000). Lennon Compare U.S. SENTENCING GUIDELINES arguably fails each of the Comment’s MANUAL § 2L1.2 & cmt. 5 (November three conditions. Contrary to condition 2000) with U.S. SENTENCING GUIDELINES (A), she had been convicted of two MANUAL § 2L1.2 (November 2001). felonies—aggravated assault in New Because the District Court used the Jersey and violation of the Pennsylvania November 2001 Guidelines, she was Controlled Substance Act. Contrary to denied the opportunity for that additional condition (B), her aggravated assault departure. offense probably qualified as an As the Government points out, “aggravated felony” as defined under the Lennon’s criminal record would have November 2000 Guidelines. 11 And prevented her from being considered for a contrary to condition (C), her New Jersey downward departure under the November aggravated assault conviction carried a 2000 Guidelines. Section 2L1.2, comment sentence of longer than one year. 5 of the November 2000 Guidelines states:

11 See U.S. S EN TEN CIN G time at oral argument. See Nagle v. GUIDELINES MANUAL § 4B1.2 cmt. n.1 Alspach,

, 144 (3d Cir. 1993) . (November 2000).

9 Since the downward departure provision was inapplicable to her, the November 2000 version of the Guidelines was no more favorable to Lennon than was the November 2001 version. That being so, the Ex Post Facto clause did not prevent her from being sentenced under the November 2001 Guidelines—the Guidelines in force at the time of her sentencing—and the District Court did not err by doing so. III. For the foregoing reasons, we will affirm the judgment of the District Court.

10