whether the prior conviction constituted an "aggravated felony"
or instead merely a "felony" under the Guidelines. Twelve points
hang in the balance.
The term "aggravated felony" is defined at
8 U.S.C. § 1101(a)(43) as "illegal trafficking in a controlled substance (as
defined in § 802 of Title 21), including a drug trafficking crime
(as defined in § 924(c) of Title 18)." Also, § 924(c) defines a
drug trafficking crime as "any felony punishable under the
Controlled Substances Act" (21 U.S.C. § 801 et seq.). Those
courts that have addressed the issue have determined that two
elements are required in order to deem a prior conviction an
"aggravated felony" under the Guidelines: (1) the prior offense
must be a felony under the law of the state of conviction, and
(2) the prior conviction must also have been punishable under the
Controlled Substances Act. See United States v. Hinojosa-Lopez,
130 F.3d 691, 694 (5th Cir. 1997); United States v.
Briones-Mata, 116 F.3d 308, 310 (8th Cir. 1997); United States
v. Garcia-Olmedo, 112 F.3d 399, 400 (9th Cir. 1997); United
States v. Valenzuela-Escalante, 130 F.3d 944, 946 (10th Cir.
1997). United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st
Here, it is clear that Defendant's prior conviction for
possession of a controlled substance with intent to deliver was a
felony under Illinois law. Defendant concedes as much, but urges
the Court to nonetheless ignore Circuit Court precedent. The
Court will reject this invitation.
In addition, possession of cocaine with intent to deliver is
punishable under the Controlled Substances Act. See
21 U.S.C. § 801 et seq. Based on the above authorities, the Court finds that
the 16 level enhancement is properly applied in this case.
C. Downward Departure
The Government and Defense Counsel agree that a downward
departure pursuant to 5K2.0 is warranted in this case. They argue
that the Defendant receives the enhancement merely for being an
illegal alien while in custody for the 1998 state conviction for
unlawful use of a firearm. This sort of circumstance should be
distinguished from cases where a person actively commits a
criminal act while imprisoned.
For example, a person who escapes from prison would deserve an
enhancement because he is determined to be more culpable than a
person who does not commit a crime while imprisoned. See United
States v. Jimenez, 897 F.2d 286 (7th Cir. 1990). Thus, some
element of volition seems to be crucial in applying the
enhancement to persons who commit crimes while in prison or under
a criminal justice sentence.
In this case, Defendant received the enhancement based on the
fact that he was "found" to be an alien while in custody for his
1998 conviction for unlawful use of a firearm. But being an alien
is different from escape attempts or trying to smuggle contraband
into the prison. The former is more akin to a pure status offense
and is far less demonstrative of criminal culpability than the
latter type of active criminal behavior.*fn1
It should be noted that some courts have determined that
reentry by an illegal alien constitutes a continuing offense and
that an alien who is arrested after that illegal reentry may
receive the two point enhancement for having committed the
offense of reentry when he was "found" in prison after his
reentry. See United States v. Santana-Castellano, 74 F.3d 593,
598 (5th Cir. 1996).
However, the Santana-Castellano court did not consider
whether a downward departure might be warranted in such
situations. In addition, cases such as Santana-Castellano are
compatible with a departure
under U.S.S.G. § 5K2.0. While the Sentencing Guidelines by its
plain terms justify the two point enhancement, it also seems
clear that the Commission did not consider the specific sort of
situation exemplified by the instant case. A downward departure
is justified when the Court finds that a guideline linguistically
applies to a case, but the conduct involved is significantly
different from the norm contemplated by the Guideline. See
United States v. King, 150 F.3d 644, 650 (7th Cir. 1998) (citing
U.S.S.G. ch. 1, pt. A, intro. comment. 4(b)).
The Court finds that the Commission did not contemplate the
situation involved in this case when formulating U.S.S.G. §
4A1.1(d). It appears far more likely that the Commission
envisioned that the enhancement therein should typically be
applied to those who engage in criminal behavior while under a
criminal justice sentence rather than those who are "found" to be
illegal aliens while in custody. Thus, the Court agrees with the
parties that a downward departure is warranted in this case.
Ergo, Defendant's objections to the PSR (d/e 20) are DENIED.
The Government's unopposed motion for downward departure pursuant
to 5K2.0 is ALLOWED. Thus, Defendant's offense level is 21, and
his criminal history category is IV, yielding a guideline range
of 57-71 months. The Government and Defendant request a sentence
of 57 months.
Accordingly, Defendant is sentenced to 57 months imprisonment.
The imprisonment is to be followed by a two year term of
supervised release upon discharge from the Bureau of Prisons.
Defendant is ordered to pay the mandatory assessment of $100.00.
No fine will be imposed.