United States v. Troncoso, 23 F.3d 612, 1st Cir. (1994)

23 F.
3d 612
UNITED STATES, Appellee,

v.
Radhame TRONCOSO, Defendant, Appellant.
No. 93-2130.
United States Court of Appeals,

First Circuit.
Heard May 2, 1994.
Decided May 18, 1994.
1
Gordon R. Blakeney, Jr., Concord, NH, by Appointment of the Court, for

appellant.
Jean B. Weld, Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty.,
Concord, NH, was on brief for appellee.
Before SELYA and BOUDIN, Circuit Judges, and CARTER, * District Judge.
GENE CARTER, Chief District Judge.
Radhame Troncoso appeals his conviction and sentence for illegal reentry into
the United States after having been deported subsequent to conviction for an
aggravated felony, 8 U.S.C. Sec. 1326(b)(2). We affirm.
I. FACTUAL BACKGROUND
6
Appellant, Radhame Troncoso, from the Dominican Republic, has been

convicted several times of drug trafficking and other related offenses in the
United States. The conviction most relevant to this appeal took place on
January 25, 1988, when Appellant was convicted in a Massachusetts state court
on charges including possession of cocaine with intent to distribute. Appellant
served his prison sentence and was then turned over to officials of the
Immigration and Naturalization Service ("I.N.S.") who deported him on several
grounds, including conviction of a drug trafficking offense. The deportation
occurred on October 26, 1988. At that time, the I.N.S. warned Appellant that if
he returned to the U.S. within five years, he would be guilty of a felony and
subject to up to two years in prison as provided for by section 1326, before that
section was amended by the Anti-Drug Abuse Act of 1988. 8 U.S.C. Sec.
1326.1
7
Appellant did return undetected to the United States at some point and was
convicted in New York on August 29, 1991, on drug-related charges but was
not deported following his incarceration.2 He was later arrested in New
Hampshire on October 30, 1992, convicted of selling cocaine, and received a
suspended sentence in April of 1993. He was also charged with violating
section 1326(b)(2) based on his earlier deportation in connection with the
January 25, 1988, conviction. Section 1326(b)(2), which had been amended
since Appellant's conviction and deportation, enhanced the maximum penalty
for unlawful reentry from two to fifteen years for aliens who had been deported
subsequent to conviction for committing an aggravated felony. See 8 U.S.C.
Sec. 1326(b)(2) (Supp.1993). On August 30, 1993, Appellant was convicted
and sentenced to 60 months in prison.
II. DISCUSSION
8
Appellant challenges the district court's denial of his motion to dismiss the
indictment, arguing that Congress did not intend for section 1326(b)(2), as
amended by the Anti-Drug Abuse Act of 1988, to apply retroactively to persons
who were convicted and deported prior to the Act's effective date. 8 U.S.C. Sec.
1326(b)(2). Appellant argues, in the alternative, that applying section 1326(b)
(2) retroactively to his case violates the ex post facto Clause of the United
States Constitution. U.S. Const. art. I, Sec. 9, cl. 3. He also argues that the
doctrines of equitable estoppel and estoppel by entrapment bar the court, as a
matter of law, from sentencing him beyond a two-year term of imprisonment in
light of the representations made by I.N.S. agents at the time of his deportation.
Lastly, he argues that the district court erred by treating his New Hampshire
state conviction as a "prior sentence," rather than as part of the instant offense
of violating section 1326(b)(2), pursuant to section 4A1.2(a)(1) of the
Sentencing Guidelines. U.S.S.G. Sec. 4A1.2(a)(1).
A. Statutory Construction
9
Appellant's first argument focuses on Congressional intent with respect to the

retroactive application of section 1326(b). 8 U.S.C. Sec. 1326(b).3 Section
1326(b) was added to the Immigration and Nationality Act ("INA") on
November 18, 1988, when Congress enacted the Anti-Drug Abuse Act of 1988
("ADAA"). See Pub.L. 100-690, Title VII, Subtitle J, Sec. 7345(a), 102 Stat.
4471 (codified as amended at 8 U.S.C. Sec. 1326(b)(1988)). Apart from the
statutory text, the Act provided that the amendment adding section 1326(b)
"shall apply to any alien who enters, attempts to enter, or is found in, the United
States on or after the date of the enactment of this Act." The ADAA also added
a provision to the INA defining the new term of "aggravated felony" to include
murder, illicit trafficking in any controlled substance, money laundering, and
crimes of violence carrying at least 5 years of imprisonment. See Pub.L. 100690, Title VII, Subtitle J, Sec. 7342, 102 Stat. 4469 (codified as amended at 8
U.S.C. Sec. 1101(a)(43) (1988)). The Act did not include a section limiting the
temporal applicability of the "aggravated felony" definition.
10
The parties do not dispute that Appellant's drug conviction, which precipitated
his deportation on October 26, 1988, falls into the definition of "aggravated
felony" in section 1101(a)(43). 8 U.S.C. Sec. 1101(a)(43). The issue in dispute
is whether Congress intended for section 1326(b)(2), as it incorporates section
1101(a)(43), to apply retroactively to an alien who was convicted and deported
prior to the ADAA amendments. In Matter of A-A-, Interim Dec. 3176 (BIA
1992), the Board of Immigration Appeals interpreted the plain language of the
amended provisions, along with the applicability section accompanying section
1326(b), and concluded that the enhanced fifteen-year criminal penalty is:
11
applicable
to 'any alien who enters, attempts to enter or is found in, the United States
on or after the date of enactment of [the November 18, 1988] Act.' ... For an alien
reentering the United States on November 18, 1988, to be subject to these criminal
penalties, the alien would need to have suffered a conviction and deportation before
November 18, 1988. It would be virtually impossible for an alien convicted of an
aggravated felony to reenter or be found in the United States on the date of
enactment unless the definition of aggravated felony included convictions occurring
before that date.
12
This Court adopted the BIA's reasoning in Barreiro v. I.N.S., 989 F.2d 62 (1st
Cir.1993) (upholding the retroactive application of the aggravated felony
definition as it was incorporated into a "waiver of deportation" provision,
serving to bar a seven-year domiciliate from seeking a waiver from deportation
pursuant to section 212(c) of the INA, 8 U.S.C. Sec. 1182(c) (Supp.1992)). In a
case very similar to the facts at hand, U.S. v. Forbes, 16 F.3d 1294 (1st
Cir.1994), this Court upheld a conviction under section 1326(b)(2) based on
aggravated felony convictions that occurred prior to the effective date of the
ADAA amendments. In oral argument, Appellant was unable to point to any
case law in support of his position that section 1326(b)(2) was not intended to
be applied retroactively. Given the law of this circuit and the plain meaning of
the provision, we affirm the district court's application of section 1326(b)(2) to
Appellant's conviction.B. Alleged Ex Post Facto Violation
13
14
Appellant argues that even if Congress intended for section 1326(b)(2) to be

applied retroactively, the effect of retroactive application in his situation results
in a violation of the ex post facto provision of the Constitution. See U.S. Const.
art. I, Sec. 9, cl. 3 (barring the retrospective application of laws that materially
disadvantage a defendant). Appellant argues that the Government failed to
present evidence ruling out the possibility that he returned to the United States
subsequent to his October, 1988, deportation but prior to November 18, 1988,
when the ADAA amendments went into effect. He argues that an ex post facto
violation has occurred with respect to him and the class of convicted-anddeported aliens who were in the country on the date of enactment because
"such a person's status is changed, and liability thus increased, by an act, of the
legislature, of which such persons had no notice, nor opportunity to avoid, even
given such notice." Appellant's Brief at 27.
In Forbes, this Court held that the inclusion of a defendant's prior drug
convictions to trigger the enhanced criminal penalties of section 1326(b)(2) did
not violate the ex post facto Clause, where the convictions had been obtained
prior to the ADAA amendments. Forbes, 16 F.3d at 1301-02. Citing Gryger v.
Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), this Court reasoned
that the enhanced fifteen-year penalty applies to the crime of unlawful reentry
and does not increase the punishment for crimes committed prior to the ADAA
amendments. Id. at 1302. Appellant distinguishes his situation by pointing out
that the appellant in Forbes committed the offense of unlawful reentry after the
amended section went into effect, whereas Appellant may have committed the
offense of unlawful reentry prior to the ADAA amendments. But section
1326(a)(2) defines the criminal conduct more expansively to include entry,
attempted reentry, or being found in the United States without permission.
Appellant was indicted and convicted of "being found in the United States" in
violation of section 1326(b)(2). His offense occurred on October 30, 1992, well
after the ADAA amendments and not on the date of his undetected reentry.
Hence, Appellant fails to satisfy a critical element for establishing that a
criminal law has ex post facto effect; he fails to demonstrate that the law is
"retrospective, that is, it must apply to events occurring before its enactment."
Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981);
see also U.S. v. Alvarez-Quintero, 788 F.Supp. 132 (D.R.I.1992) (finding no ex
post facto violation where court applied an amended Sentencing Guideline
increasing the penalty for reentry of an alien deported for an aggravated felony,
even when reentry predated the amended Guideline, because the section
1326(b)(2) offense occurred on the date the alien was found in the United
States and not on the date of the unlawful reentry).
C. Sentencing: Entrapment by Estoppel and Equitable

15
Estoppel
16
Appellant argues that the court should be estopped from sentencing him beyond
two years based on representations made to him by the I.N.S. upon his
deportation, indicating that unlawful reentry could subject him to a maximum
two-year prison term. The Court need not discuss this argument in detail
because Appellant fails to satisfy threshold elements of the two estoppel
doctrines. First, with respect to "entrapment by estoppel," Appellant cannot
show that a government official erroneously advised him that the particular act
for which he was convicted was actually legal at the time it was committed.
United States v. Smith, 940 F.2d 710, 714 (1st Cir.1991). Second, with respect
to equitable estoppel, Appellant cannot show that he relied upon a material
misrepresentation, because the I.N.S. informed Appellant that he would face up
to two years for unlawful reentry which was an accurate rendition of the law as
it existed on the date of Appellant's deportation. See Heckler v. Community
Health Services, Inc., 467 U.S. 51, 59, 104 S.Ct. 2218, 2223-24, 81 L.Ed.2d 42
(1984); K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 912 (1st Cir.1989)
(defining elements of equitable estoppel to include a material misrepresentation
of a party who had reason to know of its falsity and reasonable reliance upon
the misrepresentation to the charging party's disadvantage). Further, this Court
has recently held that even where the I.N.S. erroneously informed a deportee of
the penalty faced upon reentry, such an error is not a mitigating factor justifying
a downward departure under the Sentencing Guidelines. U.S. v. Smith, 14 F.3d
662 (1st Cir.1944) (holding that, even where defendant was misinformed as to
the consequences of unlawful reentry and stated that he returned in reliance on
the misrepresentation, such a circumstance did not justify a downward
departure where defendant made a purposeful decision to engage in felonious
conduct ). Hence, Appellant's arguments regarding the two estoppel doctrines
are unavailing.
D. Sentencing: Alleged Error in Computing Criminal History

17
18
Appellant argues that the district court erred in determining that his New
Hampshire conviction for selling cocaine on October 30, 1992, was a "prior
sentence" resulting in an additional two points being added to his criminal
history computation pursuant to section 4A1.2(a)(1) of the Sentencing
Guidelines. U.S.S.G. Sec. 4A1.2(a)(1).4 Appellant argues that his conduct in
violation of section 1326(b)(2) came to light only through his arrest for selling
cocaine. Since "he was found in this country in the process of committing that
[state] offense", Appellant argues that the offense conduct of selling cocaine
should be viewed as part of the instant offense and not counted as a prior
sentence. See Trial Transcript (Aug. 30, 1993) at 29-30.
19
The commentary to section 4A1.2 defines "prior sentence" as "a sentence

imposed prior to sentencing on the instant offense, other than a sentence for
conduct that is part of the instant offense." U.S.S.G. Sec. 4A1.2, comment.
(n.1). Here, Appellant's state court sentence was imposed in April of 1993, prior
to his August 30, 1993, sentencing on the instant offense. Whether his conduct
in selling cocaine qualifies as conduct that was part of the instant offense
presents an issue of first impression in this circuit. Other circuit courts of appeal
that have considered the issue have decided the appropriate inquiry is whether
the "prior sentence" and the instant offense involve conduct that is severable
into two distinct offenses. See, e.g., U.S. v. Beddow, 957 F.2d 1330, 1338-39
(6th Cir.1992) (holding that defendant's state conviction for carrying a
concealed weapon was not part of the instant federal money laundering offense,
even though the concealed weapon was found at the time of defendant's arrest
for attempting to carry out money laundering scheme); U.S. v. Banashefski, 928
F.2d 349 (10th Cir.1991) (holding that defendant's state court conviction for
possessing a stolen car was severable from federal offense of being a felon in
possession of a firearm, even though firearm was found in car's trunk at time of
defendant's arrest for state stolen vehicle charge).
20
Whether or not the "prior sentence" and the instant offense are severable entails
a fact-specific inquiry by the district court. To the extent that factual issues are
involved, the district court's determinations are reviewed under the clearly
erroneous standard, and "due deference" is afforded to the "application of the
guidelines to the facts." 18 U.S.C. Sec. 3742(e). Here, the district court based
its findings on the Government's arguments that the only relation between
Appellant's drug selling conduct and his conduct in violating section 1326(b)(2)
is that the former violation set in motion a chain of events whereby federal
agents were able to trace Appellant's fingerprints to those of Radhame Troncoso
and the I.N.S. then retrieved his file, which led to the determination that
Appellant was in the country in violation of 1326(b)(2). Trial Transcript at 3031. The Government argued there was no other connection between the
conduct involved in the drug offense and the 1326(b)(2) violation especially
where the state prosecutor and the United States Attorney had to prove totally
different elements with respect to each offense. Id. Based on these arguments,
the district court's determination that Appellant's sentence for selling cocaine
constituted a severable offense, and a "prior sentence" for the purpose of
computing Appellant's criminal history category, is not erroneous.
21
The judgment of the district court is AFFIRMED.
Of the District of Maine, sitting by designation
Of the District of Maine, sitting by designation

*
1
Prior to the enactment of the Anti-Drug Abuse Act of 1988 ("ADAA"), section
1326 provided for a maximum two-year term of imprisonment for any alien
who had been previously arrested and deported and was thereafter convicted of
reentry, attempted reentry, or being found in the United States without
permission. 8 U.S.C. Sec. 1326 (1987). When the ADAA was enacted on
November 18, 1988, section 1326 was amended to provide for a maximum
fifteen-year term of imprisonment for any alien who was convicted of reentry,
attempted reentry, or being found in the U.S. after having been previously
arrested and deported subsequent to a conviction for commission of an
aggravated felony. 8 U.S.C. Sec. 1326(b)(2) (Supp.1993)
The Government argues that Appellant was not deported following the New
York conviction because he used an alias which prevented I.N.S. agents from
identifying him
Section 1326 provides in pertinent part that:

(a) Subject to subsection (b), any alien who-(1) has been arrested and deported or excluded and deported, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States ...
shall be fined under Title 18, United States Code, or imprisoned not more than
2 years or both.
(b) Notwithstanding subsection (a), in the case of any alien described in such
subsection-(2) whose deportation was subsequent to a conviction for commission of an
aggravated felony, such alien shall be fined under such title, imprisoned not
more than 15 years, or both.
8 U.S.C. Sec. 1326 (Supp.1993).
Appellant's counsel, in oral argument, acknowledged that his brief to this Court
wrongly used the term "related cases," referred to in section 4A1.2(a)(2) of the
Sentencing Guidelines, to refer to the relationship between Appellant's prior
New Hampshire sentence and the instant offense of violating section 1326(b)
(2). 8 U.S.C. Sec. 1326(b)(2). Counsel acknowledged that "related cases," as
used in the Guidelines, refers to the relationship between prior sentences and
whether prior sentences should be counted as one sentence in a defendant's
criminal history and does not govern a court's assessment of whether a prior
sentence should be viewed as part of the instant offense. See also U.S. v.
Beddow, 957 F.2d 1330, 1337 (6th Cir.1992); U.S. v. Walling, 936 F.2d 469,
471 (10th Cir.1991)

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23 F.

UNITED STATES, Appellee,

United States Court of Appeals,

Gordon R. Blakeney, Jr., Concord, NH, by Appointment of the Court, for

GENE CARTER, Chief District Judge.

Appellant, Radhame Troncoso, from the Dominican Republic, has been

Appellant's first argument focuses on Congressional intent with respect to the

Appellant argues that even if Congress intended for section 1326(b)(2) to be

C. Sentencing: Entrapment by Estoppel and Equitable

D. Sentencing: Alleged Error in Computing Criminal History

The commentary to section 4A1.2 defines "prior sentence" as "a sentence

The judgment of the district court is AFFIRMED.

Of the District of Maine, sitting by designation

Of the District of Maine, sitting by designation

Section 1326 provides in pertinent part that:

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