Documente Academic
Documente Profesional
Documente Cultură
No. 93-2256
UNITED STATES,
Appellee,
v.
WILFIN ODALIS VIDAL-MEJIA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge, and
____________________
Boudin, Circuit Judge.
_____________
____________________
Per Curiam.
___________
appeals
from
his
conviction
has filed
and
a
sentence.
appointed
counsel
brief
Anders v.
______
His
court-
in conformance
with
Vidal-Mejia was
We affirm.
Background
__________
In April,
indictment
with
violation of 8
illegal
U.S.C.
reentry
1326(a)
after
and (b)(2).
in a one-count
deportation
in
Specifically,
the
indictment
charged that
after
having been
previously
a conviction for
commission
United
Although
agreement, the
responsibility.
prepared,
criminal
8 was
computing
A
a
presentence
total
offense
increased by 16
report
level
("PSR")
of
21
was
and a
levels because
Vidal-Mejia had
an aggravated felony.
been
There
resulting
months.
guideline imprisonment
range
was
46 to
57
Vidal-Mejia
moved
guidelines, arguing
years.
One of
the
for a
downward
departure from
the
his motion
was
that the
for a maximum
by an
The
Vidal-Mejia
In fact,
8 U.S.C.
months' imprisonment.
following conviction of
low end
of the
at the time
1326(b)(2) provided
alien deported
felony.
years' imprisonment.
appellant's deportation,
time of
an aggravated
guideline range,
to 46
for appellant
following issues
mistakenly believed
from
identifies the
the guidelines
notice;
2)
sentence in
two years
the
that it
on
the
government
the
estopped
erroneous
from
3) a sentence
Due Process
-3-
of the
Clause
to depart
INS
imposing
in excess of
of
the
Fifth
Amendment
failed
to the
to comply
Constitution;
and 4)
with
Crim.
Fed. R.
the district
P. 11
We agree with
in
court
accepting
departure
the
on
district
necessitates
court
a more severe
basis of
the
concluded
"deterrence
to which the
therefore
correctness
have
jurisdiction
of
that
de
novo,
United States
______________
We
We
the
v.
addressed the
"does
not present
sentencing
court
should
666.
INS notice.
review,
Cir. 1994).
INS notice
Id. at
___
to
determination. See
___
denial
Smith, 14 F.3d
_____
departure."
INS
that
erroneous
the
consider
kind of
to
Therefore,
circumstance
support
the district
downward
court's
Estoppel.
________
Appellant argues
entrapment
by
estoppel
imposition
of
"entrapment
by
and
equitable
sentence in
estoppel"
that the
excess
argument
estoppel
of
is
doctrines of
two
bar
years.
foreclosed
by
the
The
our
-4-
decision
identical
show that
circumstances because
"[a]ppellant cannot
material misrepresentation.
In
that case,
unlike this
accurate rendition
of the law as
it existed at the
time of
appellant's
deportation.
the
consequences
We
cited our
holding in
Smith,
_____
of unlawful
reentry
and
purportedly
him
decision to engage in
the benefit of
a downward
relatively
minor." Smith,
_____
14 F.3d at 666.
See also
___ ____
the Fifth
equitable estoppel
Circuit refused to
under
doctrine of
identical circumstances.
Noting
that "'he who comes into equity must come with clean hands,'"
id.
___
at
407
(quoting
v.
-5-
reasonable reliance
at
407.
See
___
also
____
Akbarin
_______
v.
F.2d 839,
Immigration and
________________
844 (1st
Cir. 1982)
from
asserting estoppel
with
appellant
the
Fifth
cannot show
against
Circuit and
the
Government"). We
conclude
"reasonable reliance,"
that
because
his equitable
of a penalty
in excess of
the two year maximum contained in the INS notice violates due
process.
approach of all
United States
_____________
4035, 1994
the circuits
v. Samaniego-Rodriguez, Nos.
___________________
U.S. App.
Lexis 20311 at
Cir. 1994);
936
United States
_____________
it.
93-3015 and
*5 (7th
follow the
Cir. Aug.
See
___
934,
v. Ullyses-Salazar, 28
_______________
F.3d 932,
We agree
inaccuracy of
Rule ll.
_______
Appellant's
plea should
failed to comply
be
final
argument is
vacated because
that his
the district
of Fed. R. Crim.
court
P. 11.
failing
understood
adequately
that the
to
explain and
maximum sentence
ensure
he could
that
he
receive was
counsel and
court's request,
aided by
an interpreter.
the government
At
the district
maximum
(The
supervised
government
release
and
also
special
recited
the
maximum
assessment that
fine,
could
be
imposed.)
The
understood
that
court
then
"that's the
asked
appellant
whether
he
maximum
penalty
that can
be
obligation under
Rule 11(c) to
ensure that
the nature of
the charge
and make a
not
he
by the record.
defendant of
determination that
he
-7-
follows:
Now, before I can find you guilty of the offense,
even on your plea, I have to be satisfied beyond a
reasonable doubt that there is sufficient evidence
from which the Government could prove you guilty of
the offense of being an illegal alien illegally
reentering the United States after having been
deported.
The Government has to prove that you
knowingly and willfully reentered the United States
without having received the express consent of the
Attorney
General, that
it didn't
happen by
inadvertence or mistake, but that you really meant
government,
however,
convictions as part
hearing.
of
an
of the
aggravated
specifically
felony.
outlined
recitation of its
1246 (explanation
the
The
previous
proof at
the
the prosecutor in
16 F.3d
that
1294, we held
1326(a)
1326(b)
and
do not
elements
1326 (b)
inform
1326(b)
appellant
understood
that the
maximum penalty
was fifteen
years.
Appellant's brief
requisite review and
U.S.
at
744.
accordance with
the
appeal
Having carefully
our obligation
is indeed
without
conducted the
reviewed
the
under Anders, we
______
merit.
The
record
386
in
agree that
conviction and
-9-