USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1722
UNITED STATES OF AMERICA,
Appellee,
v.
TYRONE SMITH,
a/k/a PAUL GLEN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Torruella, Selya and Stahl,
Circuit Judges.
______________
_____________________

Annemarie Hassett, Federal Defender Office, for appellant.

_________________
Robert E. Richardson, Assistant United States Attorney, with
____________________

whom A. John Pappalardo, United States Attorney, was on brief for

__________________
appellee.

____________________
January 28, 1994
____________________

TORRUELLA, Circuit Judge.

______________
Smith was
District
States

indicted in the

Defendant-appellant Tyrone

United States District Court

of Massachusetts for

unlawful reentry into

following deportation, in

violation of 8

for the

the United

U.S.C.

1326.

Smith moved to dismiss the indictment, collaterally attacking the

deportation

order

upon which

the

district court denied the motion.

agreement

in

reserved the

which he

right to appeal

dismiss the indictment.

as

the district

departure from

pleaded

indictment was

guilty

to the

Smith now appeals this

the applicable

The

Smith then entered into a plea

from the denial

court's denial

based.

of

his motion

indictment

but

of the motion

to

denial, as well
for a

sentencing guideline

downward

range.

We

affirm.
I.
I.
A.

FACTS
FACTS

The Underlying Deportation

Smith, a citizen of Jamaica, lived in the United States

as a

lawful permanent

resident.

In

March of

1989, Smith

was

convicted for unlawful possession of a firearm and trafficking in

cocaine.

The

Immigration and

subsequently commenced

Naturalization

Service

deportation proceedings against

issuing an order to show cause.

("INS")

Smith by

On September 11, 1991, Smith was

arrested and served with the order to show cause.

On

September

20,

1991,

Smith

appeared

immigration court and informed the immigration

the

judge that he was

represented by Paul Carrigan, a Boston attorney.

judge informed Smith that he

before

The immigration

should appear with his attorney for

-22

a deportation hearing on September 27, 1991.

Smith

The judge also told

that there would be a bond hearing on the same day.

contends that he did not

Smith

know that the deportation hearing would

take place on September 27,

1991; rather, he thought there would

only be a bond hearing on that date.

Smith
Attorney

appeared

Carrigan did

Daskal, however,
respect to
when

at

not

the
appear.

did appear

27,

Another

on behalf of

the bond aspects

the immigration

September

attorney,

Smith, but

of the hearing.

judge asked

Smith

1991 hearing.

only with

At this

if he

hearing,

had counsel

represent him for the deportation hearing, Smith replied

did not.

The immigration judge then

given ample time to obtain counsel,

forward

with

the deportation

Manny

to

that he

told Smith that he had been

and that the judge was going

hearing

with Smith

representing

himself.
The

deportation

hearing

then

commenced,

and

the

immigration judge explained the procedure that would be followed.

After the

evidence had

told Smith that

been

been introduced,

based on the types

convicted,

a waiver

was

not

the immigration

of offenses of which
available

judge

he had

to Smith.

The

immigration judge then issued an oral order of deportation.

The immigration
appeal had

to be

appeal process
appeal with

the

claimed that the

filed by

to Smith.
Board of

judge then

announced that notices

October 7, 1991,
On

October 9,

Immigration

1991, Smith

Appeals in

immigration judge erred by

-33

and explained

of

the

filed an

which

Smith

failing to consider

the fact that he had five children living in Boston, and that his
wife

was mentally

denied

ill.

his right

November 14,
Smith's

Smith

to counsel

at

1991, before any

appeal,

Attorney

I hereby withdraw

claim that he

the deportation

letter

deportation

matter."

On

respect to
to

the INS

"I am an attorney for Tyrone

any pending appeals he may

referenced

had been

hearing.

action was taken with

Carrigan sent

stating, in pertinent part:

above

did not

Smith.

have regarding the

Smith

himself

also

submitted a handwritten statement withdrawing his appeal.

B.

The Deportation

Smith was

deported on November

20, 1991.

As

part of

the deportation process, the INS gave Smith a notice, INS FORM I294, which
the

United States,

deported
is

stated that in the event that

he had

to obtain

he wished to return to

permission and

that "any

person who within five years returns without permission

guilty of

a felony.

If convicted

he may

be

punished by

imprisonment of not more than two years and/or a fine of not more
than

$1000.00."

receipt of

the

Smith signed
document.

the

INS Form

notice,

acknowledging his

I-294 only

set forth

penalties generally applicable to a violation of 8 U.S.C.

but

did not

aliens, who,
felony.

In

state the
like

more

Smith, had

severe penalties
been convicted

the

1326,

that applied
of an

to

aggravated

fact, the penalty Smith would face if he returned to

the United States without

permission was imprisonment for

up to

fifteen years.
C.

The Subsequent Criminal Prosecution

-44

Despite the

deportation order,

Smith returned to

United States, and was subsequently apprehended.

1992, the grand
Smith

with

returning

moved

deportation

to

dismiss the

proceeding

judicial

due

review and

district court held

after

the

maintaining

On

deportation

January

a hearing with respect to

denial

that the

functionally deprived

then denied the motion.

of

States

On January 19, 1993,

his

he was

process.

entered a conditional plea of

review

United

indictment,

underlying

and that

seek

the

1326(a) and (b)(2).

fundamentally unfair

dismiss, and

to

having been convicted of an aggravated felony in

violation of 8 U.S.C.
Smith

On November 12,

jury returned a single count indictment charging

illegally

deportation and

the

21, 1993,

was

of

the

Smith's motion to

On February 1, 1993, Smith

guilty, and preserved his right to

of

his

motion

to

dismiss

the

indictment.

At the sentencing hearing on April 8, 1993, Smith moved

for

a downward departure

Smith

argued

mitigated

that

the

from the applicable

sentencing range.

government

in

his conduct when

engaged

the INS gave

actions

him Form

I-294 at the

time of his deportation, which incorrectly stated the

would

face if

he returned

to the

submitted an affidavit stating that

he decided

to return to the

denied Smith's motion

it

would be

Reform Act, which

United States.

Smith

also

The district court

for a downward departure,

the

penalty he

he relied on Form I-294 when

United States.

antithetical to

that

policy behind

is to deter people from

indicating that

the Sentencing

committing crimes, to

-55

grant

his

motion, given

that

knowingly committed a felony.

Smith to 70 months in prison.

the

facts indicated

The district court

Smith

had

then sentenced

-66

II.

THE MOTION TO DISMISS THE INDICTMENT

II.

THE MOTION TO DISMISS THE INDICTMENT

Smith claims that he was denied his right to counsel at

the

September 27, 1991 deportation hearing.

claims

that the

immigration

judge

hearing either by compelling

deportation hearing.

erred

at

his

deportation

him to go forward unrepresented

by not explicitly asking him whether

the

Specifically, Smith

or

he wanted representation at

Therefore,

Smith

seeks

to

attack

collaterally the original

order of deportation, arguing

that it

cannot properly

the basis for

under 8

U.S.C.

his indictment

1326.1
To

collaterally
must

serve as

show

provide a

basis

in a subsequent
that

any

error

to

attack

deportation

criminal prosecution,
committed

with

a defendant

respect

to

____________________
1

8 U.S.C.

1326 (Supp. 1993) provides in pertinent part:

(a) Subject
to subsection
section, any alien who --

(b)

of

this

(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, or imprisoned
not more than 2 years, or both.
(b)
Notwithstanding subsection (a) of this
section, 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.

order

the

-77

deportation hearing
this

error

violated his

was

"'so

[eliminated] the right

due process

fundamental'

rights, and

that

it

that

'effectively

of the alien to obtain judicial review'".

United States v. Vieira-Candelario, 6 F.3d 12, 15 (1st Cir. 1993)

_____________
_________________
(quoting United States v.
_______ _____________
n.17

(1987)).

Mendoza-L pez, 481 U.S. 828, 837-39

_____________

"'[W]here

administrative proceeding

is

to play

subsequent imposition of a criminal

meaningful review

of the

determination
a

made

in

critical role

in

&

an

the

sanction, there must be some

____

administrative proceeding.'"

Vieira_______

Candelario, 6 F.3d at 15 (quoting Mendoza-L pez, 481 U.S. at 837__________

_______ _____________
38).
The

First

Circuit

has

recently

considered

analogous to the present situation, and its

decision here.

In

apparently erred in
for

waiver

Vieira-Candelario,
_________________
ruling that the

pursuant

to

212(c)

case

holding controls our

the

immigration

defendant was not

of

the

judge

eligible

Immigration

and

Naturalization Act,
immigration
appeal.

8 U.S.C.

judge advised the

Id. at 13.
__

did, in fact,

F.3d at

defendant regarding his

The day after the

15.

The

right to

hearing, the defendant

file a notice of appeal in which he challenged the

immigration judge's
however,

1182(c).

ruling.

because the

deported shortly
found Vieira in

Id.
__

defendant

The issue was

withdrew

after doing so.

Id.
__

INS

Providence, Rhode Island,

violating

8 U.S.C.

1326.

Id.
__

indictment

and

dismiss

the

to

his

never reached,
appeal

and

was

agents subsequently
and charged him

Vieira moved
indictment

to

by

with

quash the

collaterally

-88

attacking

the deportation

properly serve as
1326.

Id.
__

order,

arguing

that

it

the basis for his indictment under

could

not

8 U.S.C.

In rejecting the defendant's collateral attack on the

deportation order, this Court observed:

Here, in contrast to the situation in
Mendoza-L pez, the immigration judge's
_____________
putatively erroneous decision did not

"effectively" rob Vieira of his right to

review. Vieira filed a notice of appeal.
He
later
deliberately
withdrew the
appeal.
He was represented by counsel
throughout.
As
Vieira voluntarily
abandoned his right to obtain review of
the deportation order, we see no way to
hold that he was deprived of meaningful
review of the administrative proceeding
contrary to the due process clause.
Id. at 15.
__
Smith

claims that the

immigration judge erred

deportation hearing by denying him his right to counsel.

conclusion of the deportation
judge
a

At the

immigration

explained the appeal process to Smith, which required that

notice

of appeal

Appeals.
albeit

Smith

The

be

filed

then availed

not on the

counsel.
his

hearing, however, the

at the

with

the Board

himself of

ground that he

of

Immigration

his right

was deprived of

appeal process then ended only

to appeal,

his right to

because Smith, and

attorney, Mr. Carrigan, sent letters to the INS deliberately

withdrawing the appeal.

While this

case does differ from

Vieira-Candelario in
_________________

that Smith claims that he was deprived of his right to counsel at

the
that

deportation hearing, this difference does not alter the fact

Smith

was afforded

the

opportunity
-99

to appeal

from

the

immigration
appeal

judge's decision.

demonstrates that

Moreover,

he

The fact
understood

that

Smith filed

his appellate

an

rights.

Smith consulted with his attorney regarding the appeal

process, as evidenced by the fact that Attorney Carrigan, as well

as Smith, sent a
Smith did file.
ground
so.

letter to the INS withdrawing the

Additionally, while Smith did not appeal on

that he had been deprived of

Because

proceeding

appeal which

nothing

that

the

counsel, he could have done

happened

in

Smith's

deportation

affected his ability to appeal, his collateral attack

on the deportation hearing must fail.

III.
III.

SENTENCING
SENTENCING

Smith challenges the district court's refusal

him a downward

departure from the sentencing range

the Sentencing

Guidelines.

Smith

to grant

set forth in

argues that by virtue

of the

form the INS gave him at the time of his deportation, INS Form I294,

the government erroneously informed him of the consequences

of returning unlawfully to the country.

the

maximum penalty

he would face

instead of the correct penalty

affidavit stating that
to return to
higher

the United

was two

of 15 years.

States, and

that

years imprisonment,
Smith submitted

he relied upon this form

penalty he would face, he

United States.

The INS told Smith

that had he

an

when he decided
known of

the

would not have returned to the

Therefore, Smith contends that this constituted a

mitigating circumstance

that the

Sentencing Commission

had not

taken

into account

when it

warranted a downward

formulated

departure.

the guidelines,

Smith argues

and it

that the district

-1010

court improperly denied

the legal

his motion by concluding

authority to consider

the INS

that it lacked

notice as a

basis for

departure under the Sentencing Guidelines.

The
understood
notice

government

that it

provided a

Guidelines.

argues

had the
ground

But, the

that

power to
for

the

district

consider whether

departure

from

government contends,

the

court

the INS

Sentencing

the district

court

simply refused to exercise its discretion to depart downward.

Ordinarily, a district court's
discretion

and depart downward from the sentencing guidelines is

not appealable.
Cir. 1993);
1991).

United States v. Lombardi, 5 F.3d

_____________
________

United States v. Rushby, 936 F.2d 41,

______________
______

Appellate jurisdiction

district court's decision

view that it

refusal to exercise its

may attach,

42 (1st Cir.

however, where

not to depart is based

lacks the legal authority to

568, 571 (1st

the

on the court's

consider a departure.

United States v. Romolo, 937 F.2d 20, 22-23 (1st Cir. 1991).
_____________
______
record

can be

district
depart
Thus,

fairly read

court believed
under the

we review

whether or

to support

that it lacked

Guidelines on
the

not, it

the conclusion

district
did, in

the legal

the basis
court's

fact, possess

that the

authority to

of the

decision

The

INS notice.2
to

determine

the power

to depart

downward based on this circumstance.

Plenary

review is

appropriate where

the question

is

____________________

2 If we were to conclude that the district court understood that

it had the power to depart downward, but chose not to do so, we
would not have jurisdiction to consider Smith's appeal, and the
district court's sentence would stand.
-1111

"whether

or not the

allegedly special circumstances

reasons for departure) are of

principle,
_________

permit

the

(i.e., the

the 'kind' that the Guidelines, in

__

sentencing court

to

consider

at all."

United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993).
_____________
______
Under the

Sentencing Reform

Act, a

court may

depart

downward if it finds that there was a mitigating circumstance "of

a

kind"

which the

take[] into

Sentencing

consideration .

Commission did

. .

not "adequately

in formulating

the guidelines

that should result in a sentence different from that

18 U.S.C.
946-47.
not
then

3553(b); U.S.S.G.
If the court

determine if

to

the

themselves.
specifies
to

and

which should

make this determination, a court should

to be

provides that
imposed, a

need for the

and "to

18 U.S.C.
We do not

formulated

a kind

it must

purposes

and

the guidelines

18

U.S.C.

3553

the purposes which the sentencing system is attempting

the law,"

conduct."

is of

See Rivera, 994 F.2d at 947, 949.

___ ______

factors, the
for

To

sentencing system's

achieve,

sentence

commission did

circumstance into consideration,

the circumstance

justify a departure.
look

5K2.0, p.s.; Rivera, 994 F.2d at

______

finds that the sentencing

adequately take a

described."

determining

court should

the particular

consider, among

sentence imposed "to

afford adequate

other

promote respect

deterrence

to criminal

3553(a)(2)(A) & (B).

believe that when the

its guidelines,

like the present one.

in

it considered

Sentencing Commission
an unusual

situation

Despite this lack of prior consideration,

however, this situation does not present the kind of circumstance

-1212

sentencing

court

should

consider

to

support

downward

departure.
Smith contends that

because he relied on an INS notice

that misstated the criminal penalty he would face if he illegally

returned to

the United States,

departure.
of the
The

Smith's contention runs counter

sentencing system,

which is to

Sentencing Guidelines were

penalties

which were

high

committing a particular
intentionally
countenance

grant

him the

understood

relatively minor.

Rather,

Smith within the

Smith and others would be

country in

to

discourage

Smith implicitly

the future.

conduct.

penalty

he

from

admits that he

to engage

of a

to create

people

The sentencing

benefit
the

to a primary purpose

deter criminal

Smith's purposeful decision

Smith

sentence

enough

crime.

a downward

established, in part,

committed a felony.

conduct, and
because

he should be granted

downward
would

the sentencing court was

court cannot

in felonious

departure,
face

to

required to

applicable sentencing range,

so that

deterred from illegally reentering the

Therefore, the

district court's finding

that this was not the kind of circumstance

that should justify a

downward departure was proper, and its decision is affirmed.

Affirmed.
________

be

-1313