Appeal from the United States District Court for the Eastern District of California. D.C. No. CR 92-05148-EDP. Edward Dean Price, District Judge, Presiding.
Before: J. Clifford Wallace, Chief Judge, William C. Canby, Jr., Circuit Judge, and Robert J. Kelleher,*fn* District Judge. Opinion by Judge Kelleher.
KELLEHER, District Judge:
Jose Luis Cupa-Guillen appeals the district court's 100-month sentence which was imposed after he was found guilty of being a deported alien found in the United States after conviction for an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). Cupa-Guillen contends that § 1326(b)(2) violates the due process clause and that the sentence imposed thereunder constitutes cruel and unusual punishment in violation of the Eighth Amendment. We disagree.
FACTUAL AND PROCEDURAL BACKGROUND
Jose Luis Cupa-Guillen, a native and citizen of Mexico, entered this country illegally. On September 5, 1985, he was convicted in Fresno County Superior Court for the sale of heroin. The court imposed a three-year prison term. On February 20, 1986, Cupa-Guillen was deported from the United States to Mexico.
Cupa-Guillen subsequently re-entered the United States without the permission of the Attorney General. On September 10, 1987, he entered a guilty plea for the sale of cocaine and was released from custody. On September 16, 1987, Cupa-Guillen was deported.
Cupa-Guillen again re-entered the United States without the permission of the Attorney General. On October 8, 1991, he was deported. On June 29, 1992, Cupa-Guillen was found in Fresno County in the course of a drug investigation being conducted by the Fresno Police Department. At the time, Cupa-Guillen was using the name David Renteria, and claimed to be a legal alien with no documentation. Upon questioning, U.S. Border Patrol agents determined his true identity. Thereafter, Cupa-Guillen admitted that he had illegally re-entered the United States without first having obtained the permission of the Attorney General.
On July 16, 1992, Cupa-Guillen was charged by Indictment with being a deported alien found in the United States in violation of 8 U.S.C. § 1326. On November 12, 1992, Cupa-Guillen was charged by Superseding Indictment with being a deported alien found in the United States after conviction for an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). The Superseding Indictment specifically alleged that Cupa-Guillen was deported after convictions for the sale of heroin and cocaine.
Cupa-Guillen filed a pretrial motion to dismiss the Superseding Indictment, claiming, inter alia, that § 1326 violates the due process clause because it punishes on the basis of his status as an alien. The district court denied the motion, finding, in part, that " § 1326 punishes on the basis of illegal re-entry, not status, and is therefore constitutional." A jury found Cupa-Guillen guilty as charged for violating § 1326(b)(2).
At sentencing, Cupa-Guillen reiterated his due process argument. He further claimed that the probation officer's recommended sentence of 112 months constituted cruel and unusual punishment in violation of the Eighth Amendment. The district court rejected these contentions, explaining that Cupa-Guillen was not being punished for merely being in the United States. Instead, he was "being punished because he was deported after committing an aggravated felony." The district court sentenced Cupa-Guillen to a 100-month term of imprisonment.*fn1
A district court's refusal to dismiss an indictment on due process grounds is reviewed de novo. See United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.), cert. denied, 479 U.S. 869 (1986). In addition, because of Congress' plenary power to control immigration, "the scope of judicial inquiry into immigration legislation is ...