United States v. Lozano

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UNITED STATES of America, Plaintiff-Appellee, v. Melquisedec LOZANO, Defendant-Appellant.

No. 97-4004.

United States Court of Appeals, Eleventh Circuit.

April 9, 1998.

138 F.3d 915

his sentence for obstruction of justice² based upon his testimony at trial and at two prior bond revocation hearings. Upon reviewing the record, we hold that the two-level enhancement was proper. Perjury under oath on material matters, not due to confusion or mistake, justifies such an increase.

United States v. Dunnigan, 507 U.S. 87, 93-94, 113 S.Ct. 1111, 1115-16, 122 L.Ed.2d 445 (1993). Hubert may claim that the sentence enhancement impermissibly chills his constitutional right to testify but this argument has been soundly rejected by both this Circuit and the Supreme Court. See

United States v. Lawrence, 972 F.2d 1580, 1580 (11th Cir.1992);

Dunnigan, 507 U.S. at 96, 113 S.Ct. at 1117. Hubert may further object that the district court failed to make a sufficiently detailed finding that he committed perjury and obstructed justice, but in the context of the record of the hearing, detailed findings were not necessary and would have been redundant. The Pre-Sentence Investigation Report, which the district court adopted, spelled out the perjurious statements and the government elaborated on these perjurious statements during the sentencing hearing. More importantly, Hubert did not request any particularized findings regarding the perjurious statements at the sentencing hearing. Having failed to do so, Hubert cannot now complain to this court. See

United States v. Geffrard, 87 F.3d 448, 453 (11th Cir.1996), cert. denied,

___ U.S. ___, 117 S.Ct. 443, ___ L.Ed.2d ___ (1996).

AFFIRMED.

Fred Haddad, Ft. Lauderdale, FL, for Defendant-Appellant.

William A. Keefer, U.S. Atty., Ft. Lauderdale, FL, Dawn Bowen, Marc Fagelson, Anne Schulz, Stephanie K. Pell, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

Before COX and HULL, Circuit Judges, and FAY, Senior Circuit Judge.

FAY, Senior Circuit Judge:

Melquisedec Lozano pled guilty to being found in the United States after illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326(a). The district court sentenced Lozano to a prison term of 46 months. Lozano appeals his sentence, arguing that the enhancement of his sentence pursuant to U.S.S.G. § 2L1.2(b)(2) violated the Ex Post Facto Clause of the U.S. Constitution. We disagree and affirm.

Facts

Lozano was convicted for cocaine distribution in the Eastern District of Michigan on December 16, 1987 and was deported on October 22, 1992. He was discovered in the United States on January 9, 1996 and was arrested. He pled guilty to a one-count indictment on October 8, 1996. The Presentence Investigation Report (“PSI“) assigned Lozano a base offense level of eight pursuant to U.S.S.G. § 2L1.2. The PSI recommended a 16-level increase pursuant to § 2L1.2(b)(2) because Lozano‘s previous deportation was subsequent to an aggravated felony. Three levels were deducted under § 3E1.1 due to Lozano‘s acceptance of responsibility, leaving him with an adjusted offense level of 21 and a guideline range of 46 to 57 months. Lozano filed several objections to the PSI, including one based on the ex post facto argument discussed below. Each objection was overruled and the district court sentenced Lozano on December 20, 1996, to 46 months’ imprisonment.

Discussion

Lozano contends that the 16 level aggravated felony enhancement violates the Ex Post Facto Clause of the Constitution.¹ His claim is based upon the proposition that the sentence enhancement in this case punishes him for his 1987 conduct under a law and a guideline not effective in 1987. We review this claim de novo. See

United States v. Robinson, 935 F.2d 201, 203 (11th Cir. 1991).

Article I, section 9 of the Constitution provides, “No Bill of Attainder or ex post facto Law shall be passed.” The Ex Post Facto Clause bars laws that “retroactively alter the definition of crime or increase the punishment for criminal acts.”

California Dept. of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995), quoting,

Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990). Two elements must be present before a court can find an ex post facto violation: “[F]irst, the law ‘must be retrospective, that is, it must apply to events occurring before its enactment‘; and second, ‘it must disadvantage the offender affected by it.‘”

Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987), quoting

Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981);

Robinson, 935 F.2d at 204.

We agree with every circuit to address the issue that the “aggravated felony” provision of U.S.S.G. § 2L1.2 is not retrospective and, therefore, is not ex post facto. See

United States v. Baca-Valenzuela, 118 F.3d 1223, 1231 (8th Cir.1997);

United States v. Cabrera-Sosa, 81 F.3d 998, 1001 (10th Cir.), cert. denied,

___ U.S. ___, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996);

United States v. Saenz-Forero, 27 F.3d 1016, 1020 (5th Cir.1994);

United States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.1994). The offense for which Lozano was sentenced was being found in the United States after illegally reentering the country. See

Almendarez-Torres v. United States, 66 U.S.L.W. 4213, 4214–16 (U.S.1998);

United States v. Palacios-Casquete, 55 F.3d 557, 560 (11th Cir.1995). At the time of the commission of that offense, the penalties were unambiguous, and any subsequent changes have not been applied to Lozano‘s detriment.² This analysis is consistent with Supreme Court case law upholding statutes aimed at punishing recidivists. See, e.g.,

Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948) (“[The sentence] is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.“);

McDonald v. Massachusetts, 180 U.S. 311, 313, 21 S.Ct. 389, 390, 45 L.Ed. 542 (1901) (“The statute, imposing a punishment on none but future crimes, is not ex post facto.“).

AFFIRMED.

Notes

1

Lozano also challenges the district court‘s denial of his motion for downward departure. We see no basis for challenging the court‘s discretion in this regard.

2

Sentencing Guideline § 3C1.1 states in full: “If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the level by 2 levels.” U.S.S.G. § 3C1.1. The 16-level enhancement was provided by an amendment to the Sentencing Guidelines effective on November 1, 1991, pre-dating Lozano‘s offense by over four years.

Case Details

Case Name: United States v. Lozano

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 9, 1998

Citation: 138 F.3d 915

Docket Number: 97-4004

Court Abbreviation: 11th Cir.