Appeal from the United States District Court for the Western District of Washington. Appeal from the United States District Court for the Western District of Washington. Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-91-115-JCC. John C. Coughenour, District Judge, Presiding. D.C. No. CR-91-171-D. Carolyn R. Dimmick, District Judge, Presiding. D.C. No. CR-91-0174-TSZ. Thomas S. Zilly, District Judge, Presiding.
Before: Eugene A. Wright, Robert R. Beezer, and Edward Leavy, Circuit Judges. Opinion by Judge Leavy.
We are called upon to determine whether subsections (a), (b)(1) and (b)(2) of 8 U.S.C. § 1326 constitute separate crimes or merely sentence enhancement provisions for the underlying crime of illegal reentry following deportation. We hold that the three subsections identify different crimes, the elements of which must be proven at trial and not simply at sentencing.
FACTS AND PRIOR PROCEEDINGS
Jose Gonzalez-Medina ("Gonzalez"), Oscar Jaquez-Velasquez ("Jaquez"), and Ricardo Reyes-Carrillo ("Reyes") were separately charged under 8 U.S.C. § 1326 with illegally reentering the United States following deportation as convicted felons. During the course of their separate trials, the government put on evidence showing that each defendant was an illegal alien who had unlawfully reentered the United States after having been previously deported, but failed to offer any evidence that the defendants had prior felony convictions. Following instructions from the court which made no mention of the allegations of defendants' criminal records, the juries in each case convicted the defendants of illegally reentering the United States following deportation.
At their respective sentencings, the defendants argued that the government's failure to prove their prior felony convictions precluded the court from sentencing them to terms greater than two years, i.e., the maximum provided for a conviction of illegal reentry following deportation under 8 U.S.C. § 1326(a). The government countered by arguing that (1) the defendants had each stipulated before trial to the government's contention that it did not have to prove their prior felony convictions because the existence of a criminal record was merely a sentence enhancement provision and not a necessary element of the offense charged, and (2) any resultant error was invited error caused by the defendants themselves. The district courts rejected the defendants' arguments and sentenced them to prison terms ranging from twenty-seven to forty-eight months each, all to be followed by three years of supervised release. The defendants have timely appealed.
In these consolidated appeals the three defendants raise a single issue, viz., whether the existence of a felony conviction is a sentence enhancement provision under 8 U.S.C. § 1326 or a necessary element of an offense charged under subsections (b)(1) and (b)(2) of section 1326. For the reasons set forth below, we conclude that the existence of a prior felony conviction is a necessary element of an offense under 8 U.S.C. § 1326(b) and that the government's failure to prove this element at each of the defendants' trials requires us to vacate their sentences and remand for resentencing.
Section 1326 of Title 8 reads, in relevant part:
(a) Any alien who . . . has been arrested and deported . . . and thereafter . . . enters . . . or is at any time found in[ ] the United States . . . [without permission of] the Attorney General . . . shall be fined . . . or imprisoned not more than 2 years, or both.
(b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection -
(1) whose deportation was subsequent to a conviction for commission of a felony (other than an aggravated felony), such alien shall be fined . . . [or] imprisoned not more than 5 years, or both; or
(2) whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined . . . [or] ...