Highlights from the Eleventh Circuit court of appeals

An aggravated felony enhancement upheld for a prior conviction of possessing a forged document

December 7, 2011,

In U.S. v. Martinez-Gonzalez, the defendant appealed the 24 month sentence he received for illegal reentry into the U.S. after having been deported. What led to his deportation was his felony conviction in Alabama for possession of forged instruments - a forged permanent resident card and a forged Social Security card. Following his deportation to Mexico, he entered the U.S. illegally. He then pled guilty to entering the U.S. without permission, in violation of 8 U.S.C. 1326(a).

Under the sentencing guidelines calculation for his offense, he receives an 8 level bump in his offense level if the prior felony conviction is considered an aggravated felony. The definition of aggravated felony (8 U.S.C. §11011(a)(43)) includes an offense "relating to forgery" The main issue raised here was whether Martinez-Gonzalez' prior conviction for possession of the forged documents was a conviction relating forgery.

Martinez-Gonzalez argued that merely possessing a forged document does not amount to committing a crime relating forgery. He also argued that §11011(a)(43) is ambiguous requiring the application of the rule of lenity to be construed in his favor. The 11th Circuit did not buy in - mainly because four other Circuit Courts have upheld the 8 level increase for possession of false documents, and Martinez-Gonzalez could not cite any cases supporting his position.

As for the rule of lenity argument, the 11th Circuit found that while the phrase "relating to" may be open to some interpretation, the rule of lenity is not "invoked by a grammatical possibility." The rule is only applied if the traditional rules of statutory construction fail to interpret the statute. The court of appeals found the statute is not ambiguous in the context of this case. Congress enacted the provision with the obvious intent of curbing the use of forged documents by aliens, a crime that Martinez-Gonzalez was convicted of. Under the applicable Alabama statute, this crime is committed by possessing or uttering a forged document with knowledge of forgery and intent to defraud. Examining the array of federal forgery statutes, the 11th Circuit found the Alabama forgery statute mirrors the federal forgery statutes and concluded Martinez-Gonzalez' conviction was related to forgery.

The 11th Circuit found the sentence to be reasonable

Martinez- Gonzalez also raised the argument that his sentence was not reasonable. Because his 24 month sentence was within the guidelines range, the district court need only "set forth enough to satisfy the appellate court that [the district judge] has considered the parties' arguments and has a reasoned basis for exercising [the court's] own decisionmaking authority." (Quoting Rita v. United States)

Martinez-Gonzalez claimed the sentencing court failed to consider:
1. that he was detained in local jails since his arrest,
2. his immigration status extended his time in state custody,
3. that he will be separated from his family and face financial hardship when deported to Mexico, and
4. that he will be confined by immigration after release from prison until deported.

The 11th Circuit found the sentencing judge properly weighed the §3553(a) factors but correctly rejected Martinez-Gonzalez' arguments noting that Martinez-Gonzalez failed to pay income tax or child support while working and the evidence with respect to his family is not good - three domestic assaults, including one in which he struck the mother of his children in the face.