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U.S. v. ROME RO-TAMAYO
February 26, 1999
UNITED STATES OF AMERICA
JUAN LUIS ROMERO-TAMAYO, DEFENDANT.
The opinion of the court was delivered by: Arcara, District Judge.
On October 19, 1998, defendant Juan Luis Romero-Tamayo waived
indictment and pled guilty to a one-count information charging
him with illegal reentry into the United States after previously
being deported, in violation of 8 U.S.C. § 1326 (a). Following
defendant's plea of guilty, the United States Probation Office
prepared a presentence investigation report ("PSR").*fn1 Both
the government and the defendant object to paragraph 41 of the
PSR, which provides:
The defendant re-entered the United States after
having previously been convicted of an aggravated
felony. This is in violation of  U.S.C. §
1326(b)(2) which has a 20 year statutory maximum term of
imprisonment. As a result, if convicted under that
statute, the guideline imprisonment range of 46 to
57 months would be applicable. It should be noted
that in a March 24, 1998 Supreme Court case,
Almendares-Torres [sic] v. United States, 96-6839,
the Supreme Court ruled that the penalty provisions
of 8 U.S.C. § 1326 (b)(1) and § 1326(b)(2) are
not separate statutes but are sentencing enhancements
of 8 U.S.C. § 1326 (a). As a result, the Court
in this situation, could determine that the statutory
maximum is 20 years and is not 2 years and sentence
the defendant within the guideline range of 46 to
When the parties appeared for sentencing on January 25, 1999,
the Court raised the issue of the applicability of the 20-year
maximum in § 1326(b)(2) and ordered the parties to brief the
issue. Oral argument was held on February 12, 1999.
After reviewing the submissions of the parties and hearing
argument from counsel, the Court finds that the plea agreement in
this case is contrary to law and therefore must be rejected.
8 U.S.C. § 1326 (a) makes it unlawful for a person who has been
deported from the United States to reenter the United States
without permission of the Attorney General of the United States.
Section 1326 provides, in pertinent part, as follows:
§ 1326 Reentry of removed alien; criminal penalties for reentry of
certain removed aliens.
(a) Subject to subsection (b) of this section,
any alien who —
(1) has been . . . deported . . ., and thereafter[,]
(2) enters . . ., or is at any time found in, the
United States [without the Attorney General's consent
or the legal equivalent], shall be fined under Title
18, or imprisoned not more than two years, or both.
(b) Notwithstanding subsection (a) of this section,
in the case of any alien described in ...
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