United States v. Perez Santana, 1st Cir. (1994)
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Scribd Government DocsUnited States v. Perez Santana, 1st Cir. (1994)
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Scribd Government DocsUSCA1 Opinion
June 9, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-2273
UNITED STATES,
Appellee,
v.
RAFAEL PEREZ-SANTANA,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
___________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________
___________________
Edward P. Manning, Jr., on brief for appellant.
_____________________
Sheldon Whitehouse, United States Attorney, Margaret E.
___________________
____________
Curran and
Charles A Tamuleviz,
Assistant United
States
______
_____________________
Attorneys, on brief for appellee.
__________________
__________________
Per Curiam.
___________
Appellant, Rafael Perez-Santana, pled
guilty
to reentry after
felony
conviction, in
The
district
court
deportation following an aggravated
violation of
sentenced
guidelines to 52 months in
sentence
because
prison.
on the ground that the
from imposing
prison
him
8 U.S.C.
under
1326(b)(2).
the
sentencing
Appellant challenges his
district court was estopped
sentence in
excess
of
two
years
the government advised him in Spanish at the time of
his deportation that the
reentry was two years.
maximum prison sentence for illegal
We affirm the sentence.
Background
__________
Appellant,
citizen
of the
Dominican
Republic, was
convicted on December 4, 1991, in Rhode Island state court of
two felony counts
related to
the delivery of
cocaine.
On
March 6, 1992, following a hearing before the Immigration and
Naturalization
Service
("INS"),
appellant
was
ordered
deported from the United States.
It
is
undisputed
deportation hearing,
That
form warned
that
at
the INS
appellant,
the
time
of
appellant's
provided him with
Form I-294.
in English
and Spanish,
that
reentry within five years without permission would constitute
a
felony, punishable
years.
The
appellant
form,
by imprisonment of
dated
March
to indicate receipt.
also received and
6,
At
not more
1992,
was
that two
signed
by
the same time, appellant
signed an "Attachment to Form I-294" which
-2-
notified appellant
following
punishable
that illegal
conviction
of
by imprisonment
pursuant to 8 U.S.C.
an
entry by a
aggravated
for
"not more
1326(b)(2).
person deported
felony
would
be
than 15
years,"
The "Attachment
to Form
I-294"
was not
translated into
Spanish.
Appellant claims
that he cannot read English.
On
January
Providence,
13,
Rhode
1993,
Island,
Federal Grand Jury for
following
terms
eventually
arrested
indicted
illegal reentry by an alien
conviction of
an
aggravated felony.
by
in
a
deported
Under
the
the imposition of a sentence in excess of the two-
maximum
of
translation of
objected to
would
and
was
of the plea agreement, appellant reserved his right to
challenge
year
appellant
which
was
Form I-294.
the PSR to
result
he
in
Appellant argued
Prior to
prison sentence
the
Spanish
its recommendations
exceeding
district court was
imposing a lengthier sentence
into the United
by
sentencing, appellant
the extent that
that the
misrepresenting at
advised
two
years.
estopped from
by the government's conduct in
the time of his
deportation that reentry
States would be punished by
imprisonment of
not more than two years.
The district court, adopting
the PSR's findings of fact
and application of the guidelines, arrived at an imprisonment
range of 46 to 57
52
months
months.
in prison.
The court sentenced
In
appellant to
rejecting appellant's
-33
estoppel
argument,
the court reasoned as
follows.
First,
it had "a
great deal of difficulty in accepting" appellant's contention
that he
had relied
upon his
understanding that
a two-year
maximum sentence applied in deciding to illegally reenter the
United States.
include
provision
required
Second,
Spanish
translation
did not
by
the
amount
to
estoppel
refused to apply the
had "unclean
the court found that the
of
the
failure to
enhanced
the "affirmative
doctrine.
penalty
misconduct"
Finally,
the
court
equitable estoppel doctrine to one
hands," because
he had knowingly
who
violated the
law by reentering the United States.
Discussion
__________
This appeal
entirely
on
of the
district court's sentence
the estoppel
argument.
In support
appellant argues that the elements of estoppel, as
by this
court in
Akbarin,
_______
doctrine
of
thereof,
set forth
Akbarin v. Immigration and Naturalization
_______
_______________________________
Service, 669 F.2d 839 (1st Cir. 1982),
_______
In
is based
this court
equitable
addressed
are met by this case.
the
estoppel against
application of
the
the
government in
immigration cases. The court held that in determining whether
the
government
is estopped,
the
focus
should be
on
the
following two questions.
error?
If so, then,
the petitioner
First, was the Government's action
did the government
to act in a
have ?" Id. at 843.
___
In
misconduct "induce
way that he
would not otherwise
this
the district
case,
court
-44
rejected
appellant's
contention that
"if
Mr.
Santana had
known that the maximum penalty would be four years as opposed
to one to two years, that he wouldn't have entered the United
States."
failure
Therefore, even
to
constituted
found
the district
18
court
the
to
government's
Form
I-294"
district court
of the
has
equitable estoppel
Giving "due regard to the opportunity
to
U.S.C.
district court's
that the
"Attachment
reliance element
was not met.
witnesses,"
the
government misconduct,
that the
doctrine
of
translate
assuming
failure to
judge
the
3742(e),
we
credibility
conclude
find reliance was
of
the
that
the
not "clearly
erroneous." Id.
___
Moreover,
in
Akbarin,
we
held
that
"[p]etitioner's
_______
unclean
hands . . . may preclude him from asserting estoppel
against the
Government." 669 F.2d
at 844.
Here, appellant
admits that he knowingly committed a felony by reentering the
United States.
In United States v. Perez-Torres, 15 F.3d 403
_____________
____________
(5th Cir. 1994), the Fifth Circuit, on facts almost identical
to
the facts of this case, refused
equitable estoppel.
and
to apply the doctrine of
The court held that "the law should not,
does not, regard the willful and knowing commission of a
felony as 'reasonable' reliance
for these purposes."
Precision Instrument Mfg. Co. v.
_______________________________
Citing
Automotive M.M. Co., 324
____________________
U.S. 806 (1945), the Fifth Circuit reasoned as follows:
Here the matter as to which Perez seeks relief is
his reentry into the United States, and as to this
-55
he is tainted with extreme bad faith, for he knew
such
conduct was
a felony
and nevertheless
willfully and purposefully engaged in it; hence, to
avoid injury to the public, the doors of equity are
closed to Perez, however improper the INS's earlier
advice to him concerning the maximum sentence for
that felony.
United States v. Perez-Torres, 15 F.3d at 407.
_____________
____________
This court applied similar reasoning in United States v.
_____________
Smith,
_____
14 F.3d 662 (1st
challenged
his
sentence
erroneously informed
receive for
years.
Cir. 1994).
on
the
There, appellant also
ground
him that the maximum
reentering the
that
the
INS
sentence he could
United States illegally
was two
In holding that petitioner's alleged reliance on the
government's misstatement
mitigating
circumstance
under the
of the
that
maximum penalty was
warranted downward
sentencing guidelines,
we focused
not a
departure
on appellant's
knowing commission of a felony:
Smith implicitly admits that
he intentionally
committed a felony. The sentencing court cannot
countenance Smith's purposeful decision to engage
in felonious conduct, and grant him the benefit of
downward departure, because Smith understood the
penalty he would face to be relatively minor.
Id. at 666.
___
The
cases
that
appellant
relies
upon,
Johnson
_______
v.
Williford, 682 F.2d 868 (9th Cir. 1982) and Corniel-Rodriguez
_________
_________________
v.
I.N.S., 532 F.2d 301 (2d
______
those
cases, the
indisputably
parties
relied
upon
Cir. 1976), are inapposite.
asserting equitable
the
-66
government's
In
estoppel had
misconduct.
Moreover, in
those cases appellants did
the
Therefore,
law.
the
"unclean
not knowingly break
hands"
bar
to
the
application of equitable estoppel did not come into play.
The sentence imposed by
the district court is summarily
affirmed pursuant to Loc. R. 27.1.
-77
