REVISED FEBRUARY 14, 2000

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 99-10848

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARIA LUISA PRINCIPE,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas February 11, 2000 Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-appellant Maria Luisa Principe appeals from the

sentence imposed by the district court following her pleading

guilty, pursuant to a plea agreement, to two counts of knowingly

possessing counterfeit alien registration receipt cards in

violation of

(a).

I. BACKGROUND

Following execution of a search warrant and during a search of Principe's residence on January 29, 1999, INS agents recovered

among other things, three fraudulent alien registration receipt

cards and two fraudulent social security cards from Principe's

purse. The first card featured Principe's photograph and was in

the name of Laura Castanon. A second card also featured Principe's

photograph, but was in the name of Victoria Rodriguez. And a third

card was in the name of Reginaldo Gallardo. The two social

security cards recovered from Principe's purse were in the names of

Laura Castanon and Victoria Rodriguez. Also recovered during the

search of Principe's residence were 18 fraudulent but blank INS

notice of action forms (form no. 1-797C) used for obtaining

replacement alien registration receipt cards; 3 fraudulent Mexican

birth certificates in the name of Rick Meza; 4 fraudulent but blank

Mexican birth certificates; 17 fraudulent but blank Mexican entry

forms (form no. F.M.6); 15 fraudulent but blank Mexican military

service booklets; and 19 fraudulent Certificates of Naturalization.

All told, 90 fraudulent documents were found at Principe's home.

Before executing the search warrant, the agents determined that

Principe was a lawful resident alien.

On April 20, 1999, a six-count superseding indictment was

returned against Principe. That indictment charged Principe with

one count of encouraging an alien to illegally enter the United

States in violation of

(a)(1)(iv); two counts of

possessing a fraudulent alien registration receipt card in

violation of

(a); one count of possession of forged

2 Immigration and Naturalization documents in violation of

(a); one count of possession of five or more false

identification documents in violation of

(a)(3);

and one count of possession of counterfeit naturalization documents

in violation of

(c). Pursuant to a plea agreement,

Principe entered a guilty plea to the two counts charging her with

possession of fraudulent alien registration receipt cards (counts

two and three) and all remaining counts were dismissed at the time

of her sentencing on July 16, 1999.

At sentencing, the district court permitted the government to

call as a witness, Special Agent Edward Koranda of the Immigration

and Naturalization Service (“INS”), and over the objections of

Principe's counsel, Agent Koranda testified regarding his opinion

of the potential uses Principe had for the two fraudulent alien

registration receipt cards featuring her photograph. He testified

that she could have: (1) given the cards to someone who looked like

her; (2) used the cards as examples of the quality of fraudulent

card she could obtain for others; or (3) used the cards herself to

conceal her identity in the event she were apprehended smuggling

aliens into the United States (i.e., if caught, she would produce

the fake registration cards and be deported as Laura Castanon or

Victoria Rodriguez, and then later return to the United States

under her own name using her valid registration card). On cross-

examination, Koranda conceded that he considered more than just the

two fraudulent alien registration cards mentioned in the indictment

3 and the factual resume to formulate his opinions.1 He also

testified that up until the week before sentencing he had

consistently told the United States Attorney's office that he

believed Principe had the cards for only the third use he testified

to, that is, that Principe had the cards to use as false

identification in the event she was apprehended smuggling illegal

aliens into the United States.

At sentencing, Principe maintained that she had the two alien

registration receipt cards only for the purpose of securing

employment in the United States during the time she was waiting for

her own legitimate registration receipt card to be processed. The

district court however, considering the INS agent's testimony and

all of the references in the pre-sentence report (“PSR”) to the

other fraudulent documents retrieved from Principe's residence,

adopted the recommendation of the United States Probation Office

that Principe be sentenced under U.S.S.G. § 2L2.1, which guideline

deals with, among other things, trafficking in documents related to

naturalization, citizenship, or legal resident status.2 The

1 The dissent asserts that neither the addendum to the PSR nor Agent Koranda’s testimony "draw from Principe’s activities that fall into the category of relevant conduct." Agent Koranda’s concession on cross-examination belies this assertion. 2 The factor which prompted the probation officer to select U.S.S.G. § 2L2.1 as the appropriate guideline for Principe’s sentence was the presence in the heading of that guideline of the word "trafficking." That word is not used anywhere in the statute of conviction and it is not defined anywhere in the Guidelines. The most applicable dictionary meaning of "trafficking" is "to carry on trade or commercial dealings" and "to trade or deal in a

4 district court overruled Principe's objection to the use of § 2L2.1

(with a base offense level of 11) and rejected her argument that

§ 2L2.2 (with a base offenses level of 8), dealing with the

fraudulent acquisition of documents related to naturalization,

citizenship, or legal resident status for one's personal use was

the more appropriate guideline to use in determining the sentence

to be imposed. Principe has timely appealed her sentence, arguing

that the district court improperly utilized § 2L2.1, rather than

§ 2L2.2.

II. DISCUSSION

The sole issue before us is whether the district court erred

in sentencing Maria Luisa Principe under U.S.S.G. § 2L2.1 rather

than under U.S.S.G. § 2L2.2. We review a district court's

selection of the applicable sentencing guideline de novo. See

United States v. Hornsby,

(5th Cir. 1996). After

specific commodity or service, often of an illegal nature." WEBSTER’S COLLEGIATE DICTIONARY 1414 (1991). The only portion of

(a) which even remotely contemplates "trafficking" is that portion of the third paragraph thereof which reads: "whoever ... sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit or other document to any person not authorized by law to receive such document." This language could support a determination that § 2L2.1 is the most appropriate of the two guidelines specified in the Appendix A - Statutory Index as being applicable to § 1546. There is nothing, however, in the counts of the indictment to which Principe pleaded guilty nor in the plea agreement nor in the factual resume which even intimates, much less expressly states, that Principe’s conduct related to "selling," "trading" or "dealing" in "such documents" to or with any person not authorized by law to receive such documents.

5 carefully reviewing the record in this case, and for the reasons

discussed below, we find that the district court committed

reversible error in sentencing Principe under § 2L2.1 rather than

§ 2L2.2.

When sentencing a defendant, the district court must first

determine which offense guideline section is most applicable to the

offense of conviction, generally by reference to the guidelines'

statutory index found at Appendix A thereto. See U.S.S.G.

§ 1B1.2(a), comment 1. If more than one offense guideline section

is referenced for a particular statute, the district court must

select the most appropriate section based upon the nature of

conduct charged in the count for which the defendant was convicted.

See id.; see also United States v. Beard,

(5th Cir.

1990).

In this case, the district court was faced with the dilemma of

choosing between two competing offense guidelines sections, both of

which were made applicable by the guidelines' statutory index to

(a). The first, § 2L2.1, deals with “trafficking” in

documents relating to naturalization, citizenship, or legal

resident status and carries a base offense level of 11. The

second, § 2L2.2, deals with fraudulent acquisition of documents

relating to naturalization, citizenship, or legal resident status

for one's “own use” and carries a base offense level of 8. Thus,

in order to determine which offense guideline section to apply when

6 sentencing Principe, the district court was required to select the

most appropriate of the two applicable sections based upon the

nature of conduct charged in the counts for which she pleaded

guilty and was convicted.

As a preliminary matter, we note that the first three

paragraphs of

(a), to which Principe twice pleaded

guilty, provide as follows:

(a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or

Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and

7 Naturalization Service for the printing of such visas, permits, or documents; or

Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorized by law to receive such document; or

....

(a).

Clearly this statute is designed to punish several types of

conduct. Those acts described in the first paragraph revolve

around a defendant's individual procurement, possession, or use of

various fraudulent immigration documents. The second paragraph

concerns a defendant's procurement, possession, or use of materials

which would enable the defendant to manufacture or provide various

fraudulent immigration documents to others. The third paragraph

defines a real mixture of prohibited conduct including that which

would enable the defendant to assist others. That the guidelines'

statutory index references the potential applicability of both

§ 2L2.1 and § 2L2.2 for violations of

(a) is

therefore, no surprise. Presumably, the “personal use” guideline

section, § 2L2.2, could be applicable to violations charged under

the first paragraph, and the “trafficking” section, § 2L2.1, could

8 be applicable to violations charged under the second and third

paragraphs. We note that the two counts of the indictment to which

Principe pleaded guilty reference simple “possession” under the

first paragraph of

(a).

Principe argues that the district court should have restricted

its analysis of which guideline section applied to the language

contained in her counts of conviction, and it should not have taken

into consideration the other relevant conduct related to counts

which the government dismissed. The government contends that in

order to determine whether Principe's possession was for the

purpose of “trafficking” -- making § 2L2.1 applicable, or for her

“own use” -- making § 2L2.2 applicable, the district court had to

look to evidence at the sentencing hearing other than the direct

language of the counts of conviction. The government specifically

asserts that “the evidence at the sentencing hearing was properly

focused on the decisive issue of whether Principe possessed the

cards in question for her own use.” Without citation to authority,

the government further contends that the initial factual issue

raised by the heading of § 2L2.2, that is, whether the cards were

for Principe's “own use,” is reviewable only for clear error, and

that the district court's resolution of this factual issue

necessarily required it to look beyond the conduct charged in the

counts for which the Principe was convicted. The government does

cite Beard for the proposition that, in choosing between two

9 possible guidelines, the district court may look to the general

conduct of the defendant “irrespective of the statute of

conviction.” Beard,

.

The government's reliance on Beard, however, is misplaced. In

that case, we did hold that the district court could look to the

general conduct of Beard irrespective of the statute of conviction,

in order to sentence him under § 2F1.1, a fraud guideline, as

opposed to § 2J1.3, a perjury guideline, but we did so only on the

basis of two findings: first, because the offense to which Beard

pleaded guilty specifically contained as an element “fraudulently

making a false statement,” see Beard,

; and

secondly, because in Beard, as part of his plea, the defendant

stipulated and admitted to the very conduct giving rise to the

applicability of the more severe fraud guideline, and under

§ 1B1.2(a), sentencing under the more severe guideline was

therefore appropriate.

We agree with Principe that the district court can look only

to the offense of conviction in order to determine which guideline

section was applicable. In this situation, where the defendant has

pleaded guilty pursuant to a plea agreement, the district court

must look first at the language of the indictment, then to the

language of the plea agreement and then to the stipulation of facts

contained in the factual resume supporting the plea agreement. See

U.S.S.G. § 1B1.2(a) (stating that when a plea agreement contains a

10 stipulation that specifically establishes a more serious offense

than the offense of conviction, the defendant may then be sentenced

to the higher offense); see also Beard,

(once a

defendant stipulates and acknowledges facts which establish a more

serious offense, the district court may consider those facts when

fashioning a sentence).

Here, the indictment, the plea agreement, and the factual

resume support only the conclusion that Principe knowingly

possessed two fraudulent alien registration receipt cards which

featured her photograph and two different names. The factual

resume filed in support of Principe's guilty pleas contained only

the following facts:

On November 20, 1998, MARIA LUISA PRINCIPE, did knowingly possess two counterfeit Immigration Naturalization alien registration receipt cards. The cards were in the names of Laura Castanon and Victoria Rodriguez and depicted Maria Luisa Principe's photograph. Maria Luisa Principe knew the cards were counterfeit.

The elements of the offenses to which Principe entered two

guilty pleas; that is, two separate violations of

(a), were recited in the factual resume as follows:

1. That the defendant knowingly possessed an Immigration Naturalization Service alien registration receipt card;

2. That the document was counterfeited; and

3. That the defendant knew at the time of the possession that the document had been forged [sic] counterfeited.

11 Principe neither admitted nor stipulated to any facts or

elements of her offense of conviction other than those contained in

the factual resume. Thus, all that could be gleaned from the

indictment, the plea agreement, and the factual resume, is that

Principe pleaded guilty to “possessing” two fraudulent alien

registration receipt cards featuring her photograph and two

different names. And thus, under § 1B1.2(a) and our own precedent

in Beard, without some reference in either the plea agreement or

the factual resume which would constitute either a stipulation or

an admission to other conduct which might be characterized as

“trafficking,” the appropriate offense guideline section could not

be § 2L2.1. As a result, and combined with the fact that

Principe's possession in her own purse of the two cards bearing her

own likeness, only with differing names, by the government's and

the district court's own concession, could reasonably have been for

her own use were she to be arrested for smuggling aliens, we

conclude that the appropriate sentencing guideline section to have

been applied in this case was the “personal use” section, § 2L2.2.3

3 Few circuit courts have addressed the propriety of using § 2L2.1 over § 2L2.2 when a defendant is convicted of the possession of a relatively minor number of false or fraudulent immigration documents. Those which have, tend to focus on the availability of a personal use by the defendant for the fraudulent documents in determining whether the “personal use” section, § 2L2.2, is more appropriate. See, e.g., United States v. Domanski,

,

(7th Cir. March 2, 1995) (unpublished) (“Domanksi was convicted for possession of two counterfeit passports. Having been a citizen of the United States since 1989, he had no need to obtain any . . . for his own use.

12 III. CONCLUSION

Having conducted an exhaustive review of the record of this

case, and for all of the foregoing reasons, we conclude that the

district court committed reversible error in sentencing Maria Luisa

Principe under U.S.S.G. § 2L2.1, and we therefore VACATE the

sentence imposed and REMAND for resentencing under U.S.S.G.

§ 2L2.2.

Even if he did, Domanski could not have used the passports found in his possession –- they were not in his name and the photographs were not of Domanski.”). Here, the two fraudulent alien registration receipt cards found in Principe's purse did in fact feature her photograph, only the names were different. In our view, it is plausible that the alien registration receipt cards at issue in this case were available for Principe's personal use.

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