United States District Court, N.D. Illinois, Eastern Division
SEFERINO JAVIER BENJAMIN REYES-ACOSTA.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
On 12 May 2004, the defendant entered a plea of guilty to an
indictment which alleged that he was "an alien who previously had
been deported and removed from the United States on or about May
9, 1991, was present and was found in the United States without
previously obtaining the express consent of the Attorney General
of the United States for re-application by defendant for
admission into the United States, in violation of Title 8, United
States Code, Sections 1326(a) and (b)(2)."
The charge follows the bare statutory language of 1326(a)
defining the crime. Congress added subsection 1326(b) to allow
for a series of sentence enhancements based on the reasons for
any prior removal that increase the 2-year maximum imprisonment
set forth in 1326(a). The enhancement invoked in this indictment,
1326(b)(2), provides a 20-year maximum for defendants whose
removal was subsequent to a conviction for commission of an
aggravated felony. I assume, without deciding, that after United
States v. Booker, 375 F.3d 508, 2004 U.S. App. LEXIS 14223 (7th Cir. 2004), the charge would have to allege specifically
that removal occurred after an aggravated felony conviction
instead of simply reciting a generic violation of 1326(b)(2).
The United States Sentencing Guidelines provide a base offense
level of 8 for a violation of 1326(a) and go on to provide their
own list of enhancements that do not mirror precisely the
enhancements provided in 1326(b)(2). Two of the enhancements
found in 1326(b)(2) involving unlawful entry by aliens returned
before their sentences expired or those who were returned as
inadmissible aliens are not mentioned in the Guidelines. Instead,
the Guidelines offer various levels of enhancement based solely
on the nature of the defendant's prior convictions and sentences.
The prosecution contended that § 2L.1.2(b)(1)(A) of the
Guidelines applied here. This Guideline enhancement adds 16
levels to the defendant's base level of 8 where the defendant had
been convicted of a "drug trafficking offense for which the
sentence imposed exceeded 13 months."
In the plea agreement, the defendant admitted that he had been
sentenced to five years in prison for possession of a controlled
substance with intent to deliver, which is also an aggravated
felony within the meaning of 1326(b)(2).
It is the decision of Blakely v. Washington, 124 S. Ct. 2531
(2004) and the subsequent opinion of our Court of Appeals in
Booker that precipitated defendant's motion to withdraw his
guilty plea. Booker held that Blakely invalidated much of the
approach of the United States Sentencing Guidelines. Booker,
2004 U.S. App. LEXIS 14223 at *6-8. With respect to this case,
the holding requires that the government prove beyond a
reasonable doubt the facts which would justify the 16-level
increase and do so before a jury (unless waived) with evidence
that is admissible under the Federal Rules of Evidence. All this is in
contrast to the Guideline sentencing which remits the
determination of aggravating circumstances to the judge who may
accept evidence that would be inadmissible at trial and need only
find the circumstances proved by a preponderance of the evidence.
Of course, Booker may not hold up, but it is binding upon me
now, and I shall follow it. For the little or nothing this is
worth, I agree with Booker.
While early decisions on the retroactive effect of changes of
law sometimes limited effective change to cases not yet tried (in
one instance to restrict the reach of Miranda v. Arizona), the
clear rule now is that change in law applies to cases, such as
this one, that have not reached final judgment. Griffith v.
Kentucky, 479 U.S. 314 (1987).
The theory of the motion to withdraw is that the defendant was
forced to admit to the facts of his prior conviction. If he had
failed to do so, the government could contend that he had not
fully accepted responsibility, which would effectively add 3
levels to his final offense total. Of course, I might still have
found acceptance of responsibility, but defense counsel could not
rely on that outcome.
Essentially, the defendant's argument is that the decision to
concede the enhancement was made with the understanding that he
had no alternative because proof of the prior conviction could
easily be made with the use of hearsay record evidence under a
preponderance of the evidence standard by a decision maker who,
unlike a jury, might not decide to exercise lenity. A jury would
likely understand that the additional fact would affect sentence
and, if the defendant made a good impression, it might decide
that conviction of the basic offense was enough. The strategic purpose of refusing to plead under the current
sentencing regime would be this: If the juror went for the
defendant on this issue, the defendant would reduce, by 16 steps,
his offense level. Even if he lost the steps that he might get
for acceptance of responsibility after trial, the net gain to
defendant is high. In the end, if our guidelines fall as a whole,
none of this would make much of a difference. If they fall only
as to enhancements, then the strategy would make sense. The
prosecution would have to present its prior conviction evidence
to the jury under a beyond-a-reasonable-doubt standard, and the
defendant would be entitled to argue for acceptance of
responsibility before a judge under a
The practice in this District and others is to give criminal
case juries an instruction that they are not to consider the
possible sentence during deliberations on guilt or innocence.
They are told this is a matter for the court. With the exception
of Texas and a few other states, there is a general distrust in
all legislatures toward jury sentencing. Illinois abandoned its
limited jury sentencing regime a few decades ago. Blakely will
override the legislature's preference that defendants be
sentenced by judges and, at least, partially restore the jury's
role in sentencing.
The use of the jury in this way would represent a sea change in
the federal criminal jurisprudence. Many jurors, and therefore
many juries, will understand that they have some power over what
the sentence will be. With juror input on sentencing, the effort
to achieve relative consistency of sentencing-a goal of the
Guidelines-will fail more often than now. Also, legislative
criticism of certain judicial sentences will have to be
redirected to the actions of American jurors. Even when
disapproval of the jury sentencing decision is justified, elected
officials will be reluctant to levy it, as such disapproval would
be unfair to our citizens who serve on just a single case and
from whom much relevant sentencing information is withheld. While
a bit of legislative condemnation of sentencing is overheated and unjust, some of it
is reasoned, fair and useful. It is true that Congress could
enact a rigid system of mandatory minimums in an effort to avoid
these problems but, over time, people become aware of these
provisions. As history has shown, jurors can be reluctant to
convict if they believe the sentences are too harsh.
The defendant pled guilty after warnings which were
indisputably adequate when given. Such warnings ordinarily
preclude any right to withdraw the appeal. Those same warnings,
however, might not be adequate if given today.
Historically, failure of any kind in guilty plea procedures was
irreparable error. McCarthy v. United States, 394 U.S. 459
(1969). Congress changed this rule (which the McCarthy opinion
did not put on Constitutional footing) by enacting Rule 11(h),
which said a variance from the prescribed procedure "is harmless
error if it does not effect substantial rights." Over time, the
Supreme Court has shown reluctance to overturn pleas unless, on
the record as a whole, prejudice could be shown. United States
v. Timmreck, 441 U.S. 780 (1979); United States v. Vonn,
535 U.S. 55 (2002). Indeed, the Court has recently reminded us that
it ought not to be easy to overturn guilty pleas. United States
v. Dominguez Benitez, 124 S.Ct. 2333 (2004). The rationale being
that there is an unacceptable risk of prejudice to the
prosecution if a plea is easily overturned well after the time of
These cases, though, are distinguishable from the case now
before me because they dealt with challenges to pleas made on
appeal or during post-conviction proceedings. See especially
Peguero v. United States, 526 U.S. 23 (1999) (failure to warn
does not justify collateral relief if petitioner knew of the
right from other sources). Here, since the objection comes quite
soon after the plea, the risk of prejudice to the government is virtually
non-existent and ought not to be used to deny this motion to
The threshold issue then becomes whether the changes in
sentencing law apply retroactively to cases like this one where
the defendant has pled guilty but has not been sentenced. Despite
fits and starts, the Court has now settled on the proposition
that changes in law will apply at a minimum to all cases,
including this one, in which judgment has not become final.
Griffith v. Kentucky, 479 U.S. 314 (1987).
Since I find that the Blakely rules may be retroactively
applied here, I must now consider whether they justify
overturning a plea properly entered under the old regime.
Congress has provided the following rule for cases such as this
one: "A defendant may withdraw a plea of guilty . . . if . . .
the defendant can show a fair and just reason for requesting the
withdrawal." Rule 11 (d) (2) (B).
When you consider that this is a case about the effects of an
after-plea change in law that, arguably, might change the
calculus the defendant would use to plead guilty and not a case
about the propriety of admonitions, it becomes clear that there
is no fair or just reason to permit withdrawal. The seminal case
on this issue is Brady v. United States, 397 U.S. 742 (1970).
Brady pled guilty to federal kidnapping charges to avoid the
death penalty. About nine years after his plea, the federal death
penalty provisions were declared unconstitutional by United
States v. Jackson, 390 U.S. 570 (1968). Brady sought to withdraw
his plea on the grounds that it had been unfairly coerced by the
statute's death penalty provision. Brady, 397 U.S. at 744. The
Court found that Brady's plea was not impugned by his failure to
anticipate Jackson, holding that withdrawal of a plea is not
allowed "simply because it later develops that the State would
have had a weaker case than the defendant had thought or that the maximum penalty . . .
has been held inapplicable in subsequent . . . decisions." Id.
Although Brady has undergone no transformation in the lower
courts, it is thought to have left open withdrawals, such as the
one illustrated by United States v. Gomez-Orozco, 188 F.3d 422
(7th Cir. 1999). There, an illegal reentry defendant was
permitted to withdraw a plea because there was evidence that he
was not an alien. Gomez-Orozco is fundamentally different than
Brady because the withdrawal of the plea was based on the fact
that the government may have had no case, not because the
government may have had a weaker case. See also United States v.
Andrade, 83 F.3d 729 (5th Cir. 1996) (change in law
decriminalized, for federal purposes, the mere possession of a
firearm under the facts of the case at bar.)*fn1
Because the claim for withdrawal here is based on a change in
sentencing procedure that makes the government's job somewhat
more difficult than previously anticipated, there is, I think, no
daylight at all for defendant. After Apprendi v. New Jersey,
530 U.S. 466 (2000), there were attempts to withdraw pleas based
on the fact that the defendant pled under the erroneous
impression that it would be easier for the prosecution to get an
enhanced sentence than turned out to be the case after
Apprendi, none of which, to my knowledge, were successful. E.g.
United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001)
(en banc); United States v. Duarte, 246 F.3d 56 (1st Cir.
2001). The post-Apprendi cases are particularly telling here because
the Court in Blakely said that its task was to apply the rule
developed in Apprendi to the Guideline sentencing structure.
Essentially then, both Apprendi and Blakely stand for the
proposition that where a particular fact increases the sentence
beyond what would have been given absent that factor, then proof
of the existence of the fact must be made to the jury under the
same rules by which other elements of the offense are
The defendant here does not attempt to demonstrate any palpable
prejudice. There is no claim that the prior conviction and
sentence could not be conclusively proven beyond any reasonable
As the record now stands, what could have been lost here is
only the chance that, out of mercy, a jury would have ignored
overwhelming evidence and decided to ignore the truth. While the
chance to pull the wool over a jury's eyes is inherent in the
right to a jury trial, we deal here with a case in which the jury
was validly waived on the question of guilt or innocence. What
remains here is the right to have a jury decide a sentencing
factor. While Blakely emphasized the importance of the right to
a jury on sentencing factors, it did not assert that it was an
inviolable right inherent in all criminal prosecutions. The dissenters in
Blakely said that a legislature could construct sentencing
systems that required no jury decisions on specific sentencing
factors. This proposition was unchallenged by the majority. Of
course, where mandatory minimums are used, the jury, if it knew
of the minimum, could exercise its power, but not its right, to
acquit the clearly guilty simply because they thought the
sentence was too high.
A guilty plea which admits a sentencing enhancement in order to
insure a sentencing benefit to a defendant seems to be an
unlikely candidate for overturning without a showing of some
reasonable chance of prejudice to a legitimate interest of the
defendant. Here it is not said that the enhancement might not be
proved and the interest of the defendant is to have a chance that
the jury might reach a verdict against the evidence.
For all these reasons, I must find that the change in law
wrought by Blakely is not a "fair and just reason" for
withdrawing the plea.
Since the defendant here could have raised Blakely objections
to the Guidelines before the plea, the Government now claims the
failure to do so precludes the granting of this motion. I do not
think that this is true. There are few, if any, opinions in
change of law cases that turn away withdrawal motions because the
defense counsel did not raise the point prior to a plea. This is
so because change in law is "later" and therefore "new" and not
something that ought to have been foreseen. While Counsel in this
case may have known that Blakely had been argued, she may quite
reasonably have decided the point was not worth raising on
grounds both general and specific.
The general grounds are that before the Blakely decision,
there were two decisions by the Supreme Court that had found the
United States Sentencing Guidelines to be constitutional. Mistretta v. United States, 488 U.S. 361 (1989); Edwards v.
United States, 523 U.S. 511 (1998). It is my impression that
most lawyers and judges were surprised by the apparent breadth of
the Brady opinion.
The specific grounds are that the charge of unlawful reentry
after removal for the commission of a criminal offense is simple
to prove and practically impossible to defend. The prosecution
can make its case with a single witness who encountered the
defendant in the United States. The defendant's very presence in
the courtroom is damaging. A few other witnesses can establish
that the fingerprints of the defendant match the prints of the
person who was previously convicted of an aggravated felony and
then removed by deportation. Defenses, like a claim that one was
forced to cross the border at gun point, are vanishingly rare.
So, these cases almost always end in guilty pleas as this one did
forty-four days before the Supreme Court decided Blakely.
The motion to withdraw the plea of guilty is DENIED.