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U.S. v. ROME RO-TAMAYO

February 26, 1999

UNITED STATES OF AMERICA
v.
JUAN LUIS ROMERO-TAMAYO, DEFENDANT.



The opinion of the court was delivered by: Arcara, District Judge.

DECISION AND ORDER

INTRODUCTION

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 [8] 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
  57 months.

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.

DISCUSSION

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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