Opinion
Nos. 00-CV-1017E, 99-CR-112E
October 30, 2001
Renroy L. Ceasar, pro se.
William J. Gillmeister, Esq., Asst. United States Attorney, Buffalo, NY, for U.S.
MEMORANDUM and ORDER
Petitioner Renroy L. Caesar, appearing pro se, brings this motion under 28 U.S.C. § 2255 asking this Court to set aside or correct his sentence of eighty months' incarceration upon his guilty plea to violating 8 U.S.C. § 1326 (a) for having been found in the United States after having been deported and without permission of the Attorney General to have reentered. He has also made a motion to amend his section 2255 petition to argue that the pre-sentence investigator made an error in formulating what the appropriate base offense level should be in his pre-sentence investigation report ("PSIR") and, when his trial counsel did not object to such, petitioner was thereby denied effective assistance of counsel. For the reasons that follow; such petition will be denied as will his motion to amend his pleadings.
Petitioner was detained by agents of the Immigration and Naturalization Service ("INS") on August 6, 1999 for illegal reentry as a previously deported alien after he had attempted to enter the United States via the Peace Bridge which connects Canada to Buffalo, N.Y. On August 7, 1999 a criminal complaint was filed in this Court charging petitioner with a violation of 8 U.S.C. § 1326 (a) — illegal reentry by a previously deported alien — and on August 12, 1999 a federal grand jury returned an indictment charging defendant with such crime. On September 17, 1999 petitioner appeared before the undersigned and pled guily to violating section 1326(a), a conviction of which carries a penalty of two years in prison.
The statement of facts is taken from petitioner's Memorandum of Law and Facts in Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. § 2255 filed December 7, 2000.
Defendant was also charged with a violation of 18 U.S.C. § 1001, making false statements. This charge was dropped when petitioner agreed to plead guilty to a violation of 8 U.S.C. § 1326 (a).
The prosecution then sought to enhance petitioner's sentence by taking into account prior convictions which had not been charged in the indictment. This Court received the Plea Agreement and thereafter enhanced petitioner's Offense Level sixteen levels from a base of eight and made a downward adjustment of three levels because he had accepted responsibility. This resulted in a total Offence Level of 21 which, when combined with petitioner's criminal history category of VI, resulted in a Sentencing Guideline range of seventy-seven to ninety-six months of imprisonment. This Court then sentenced petitioner to eighty months in prison.
Petitioner has prior felony convictions for criminal possession of stolen propery and attempted grand larceny.
Petitioner did not appeal such sentence but instead filed a motion on December 7, 2000 to have this Court vacate, set aside or correct such sentence pursuant to section 2255. Specifically, petitioner argues that the enhanced sentence he received due to his prior convictions violated his Fifth Amendment due process rights and his Sixth Amendment right to be informed of the nature and cause of the accusation because such convictions had not been charged in the indictment. According to petitioner, this resulted in his pleading guilty to 28 U.S.C. § 1326 (a) yet being sentenced in accordance with the harsher provisions of 28 U.S.C. § 1336 (b).
8 U.S.C. § 1326 (a) provides:
"Subject to subsection (b) of this section, any alien who —
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in the United Staes * * * shall be fined under Title 18, or imprisoned not more than 2 years or both."8 U.S.C. § 1326 (b) provides:
"Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection —
(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under [title 18], imprisoned not more than 20 years, or both;"
Petitiioner relies on Apprendi v. New Jersey, 530 U.S. 466 (2000), for the proposition that the sentencing jurisdiction of the district court is limited by the four corners of tile indictment. Such reliance is misplaced. In Apprendi the Supreme Court did state that the judge is limited by the indictment in imposing sentence and that "facts which expose a defendant to punishment greater than that otherwise legally prescribed were by definition `elements' of a separate offense." Id. at 450 Nate 10. However, earlier in Almendavez-Torres v. United State, the Supreme Court explicitly held that "Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense." 523 U.S. 224, 235 (1998). In addition, the Second Circuit Court of Appeals has held that "[s]ection 1326(a) itself, which states that it is `subject to subsection (b),' makes the provisions of subsection (b) applicable whether or not the charging instrument makes reference to (b)." United States v. Romero-Tamago, 212 F.3d 729, 733 (2d Cir. 2000). Therefore and because the sentencing factors from section 1326(b)(2) are not a separate criminal offense, they do not need to be in the indictment for this Court to consider them in imposing sentence under section 1326(a).
In addition to the case law authority petitioner's section 2255 claim will be dismissed for procedural reasons. Petitioner did not directly appeal his sentence and therefore is precluded from launching a collateral attack unless he can show cause and prejudice. U.S. v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995). Keeping in mind that petitioner is proceeding pro se and presumably would not be aware of the requirement that he plead cause and prejudice, this Court notes that there is absolutely nothing in the record which could possibly indicate any reason why petitioner did not raise this pound on direct appeal. A further reason why petitione's section 2256 claim should he denied is that he expressly waived the right to collaterally attack his sentence in paragraph 20 of his Plea Agreement and this Court therefore lacks jurisdiction to reexamine the sentence. United Statue v. Salcido-Contreras, 990 E2d 51, 53 (2d Cir. 1993).
Petitioner has also made a motion for leave of this Court to amend his petition pursuant to Rule 15 of the Federal Rules of Civil Procedure ("FRCvP"). Specifically, petitioner wants to amend his petition to set aside his plea on the ground that he was actually charged with the offense of attempting to reenter the United States after removal, yet he pled guilty to illegal entry into the United States. Pet.'s Mot. to Amend at 3. In addition, he argues that, by allowing him to enter the plea for a crime with which he was not charged, he was denied effective assistance of counsel and should be allowed to amend his complaint to add this ground for relief. Id. at 9.
Rule 12 of the Rules Governing Section 2255 Proceedings states that "the district court may * * * apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules." Respondent asks this Court to expand the holding in Fama v. Commissioner of Correction Services, 235 F.3d 804, 814-816 (2d Cir. 2000), which applied FRCvP 15 to petitions brought under 28 U.S.C. § 2254 and apply such to petitions brought under 28 U.S.C. § 2255. This Court sees no reason why this request should be denied and will therefore apply the rules and precedents of FRCvP 15 to petitioner's present motion to amend his complaint.
Under FRCvP 15(a), leave to amend "shall be freely granted when justice so requires." "Reasons for a proper denial of leave to amend include undue delay, bad faith, futility of the amendment and, perhaps most important, the resulting prejudice to the opposing party." State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981).
Petitioner seeks to amend his complaint to allege that this Court denied him his constitutional rights in applying section 2L1.2(b)(1)(A) of the United States Sentencing Guidelines in sentencing him when this Court should have sentenced him under section 2X1.1(b). He argues that section 2L1.2(b)(1)(A) — which provides for a sixteen-level increase — applies only to unlawfully entering the United States while section 2X1.1(b) — which provides for a three-level decrease — applies to attempts to unlawfully enter the United States.
Petitioner s motion will be denied because this Court deems such an amendment to be futile in that his sentence would be identical whether the undersigned sentenced him for an attempt to unlawfully enter the United States or for having actually unlawfully entering the United States. "[W]hen a previously deported alien `makes an effort' or `tries' to reenter the United States, he or she violates a substantive provision of § 1326, separate and apart from entering or being found in the United States." U.S. v. Corrales-Beltran, 192 F.3d 1311, 1319 (9th Cir, 1999). Petitioner here has violated section 1326; therefore this Court was correct in sentencing him under section 2L1.2(b)(1)(A), the corresponding provision in the Guidelines.
Because this Court was correct in sentencing petitioner under such section, petitioner's proposed amendment to his complaint is futile and, resultantly, leave to amend his complaint will be denied. In addition, even if this Court was incorrect in sentencing petitioner under section 1326, as noted supra, petitioner did not directly appeal his sentence and his plea agreement waived the right to collaterally attack such. Therefore, if he were to amend his pleading, any additional grounds under section 2255 would be dismissed by this Court as procedurally defaulted or waived and the proposed amendments would therefore be futile. Because this Court was correct in sentencing petitioner under section 2L1.2(b)(1)(A) for violating section 1326, his, attorney did not commit any error by not objecting to the sentence. Petitioner's proposed amendment to add a claim for ineffective assistance of counsel therefore will also be denied as futile.
Accordingly, it is hereby ORDERED that petitioner's motion to set aside or correct his sentence is denied, that petitioner's motion to amend his pleadings is denied and that this case shall be closed.