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UNITED STATES v. WESTCOTT

April 30, 1997

UNITED STATES OF AMERICA - v - BENTLEY WASHINGTON WESTCOTT, a/k/a "BARRINGTON GLEN MORRISON," Defendant.


The opinion of the court was delivered by: SOTOMAYOR

 On May 17, 1988, defendant was convicted in New York State court of robbery in the first degree, and sentenced to 5 1/2 to 11 years in prison. On May 20, 1993, defendant was deported from the United States to Jamaica. On December 5, 1996, defendant pleaded guilty to an indictment charging him with illegally reentering the United States in or about March 1994, after being deported subsequent to the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2).

 While awaiting sentencing, defendant wrote the Court and argued that his guilty plea was invalid under the reasoning adopted by the Ninth Circuit in United States v. Gomez-Rodriguez, 77 F.3d 1150 (9th Cir.), aff'd en banc, 96 F.3d 1262 (1996). Defendant complained that he cannot be deemed an aggravated felon because his robbery conviction occurred before 8 U.S.C. § 1101(a)(43), which defines the term "aggravated felony," was amended to encompass crimes of violence such as robbery. Recognizing a split among circuit courts on this issue, this Court ordered briefing on the matter. The Court now holds that defendant cannot be deemed an aggravated felon for purposes of 8 U.S.C. § 1326(b)(2). Nevertheless, he can receive a maximum five year prison term for illegal reentry under 8 U.S.C. § 1326(b)(1), and his sentence is subject to a 16 level enhancement applicable to aggravated felons under the sentencing guidelines.

 DISCUSSION

 I. The Statutory Scheme

 As of its enactment in 1988, and as of defendant's reentry into the United States, 8 U.S.C. § 1326(b)(2) provided for a maximum 15 year prison sentence for any person who illegally reentered the United States following his or her deportation after committing an aggravated felony. Under 8 U.S.C. § 1326(b)(1), a maximum 5 year penalty applied for illegal reentry by persons "whose deportation was subsequent to a conviction for commission of a felony (other than an aggravated felony)." *fn1" Thus, defendant's maximum sentence in connection with his illegal reentry into the United States hinges upon whether his prior robbery conviction now qualifies as an aggravated felony or as a felony.

 The term aggravated felony, for purposes of section 1326, is defined at 8 U.S.C. § 1101(a)(43), and originally encompassed murder, drug trafficking, firearms trafficking, and conspiracy to commit any of those acts. Robbery did not qualify as an aggravated felony. As part of the Immigration Act of 1990, however, Congress expanded the definition of aggravated felony, and provided an effective date for the amendments:

 
(a) IN GENERAL -- Paragraph (43) of section 101(a) (8 U.S.C. 1101(a)) is amended --
 
(1) by aligning its left margin with the left margin of paragraph (42),
 
(2) by inserting "any illicit trafficking in any controlled substance (as defined in section 102 of the Controlled Substances Act), including" after "murder,"
 
(3) by inserting after "such title", the following: "any offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments), or any crime of violence (as defined in section 16 of Title 18, United States Code, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years."
 
(4) by striking "committed within the United States."
 
(5) by adding at the end the following: "Such term applies to offenses described in the previous sentence whether in violation of Federal or State law.", and
 
(6) by inserting before the period of the sentence added by paragraph
 
(5) the following: "and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was ...

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