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Yemson v. United States

January 04, 2001

OLARENWAJU A. YEMSON, APPELLANT
V.
UNITED STATES, APPELLEE



Before Terry and Washington, Associate Judges, and Newman, Senior Judge.

The opinion of the court was delivered by: Terry, Associate Judge

Appeal from the Superior Court of the District of Columbia

(Hon. Joan Zeldon, Trial Judge)

Submitted September 28, 2000

Appellant Yemson entered guilty pleas to one felony count of credit card fraud, *fn1 one misdemeanor count of receiving stolen property, *fn2 and one misdemeanor count of failure to appear in court when required, in violation of the Bail Reform Act. *fn3 On appeal he contends that the sentencing court (1) impermissibly took into account his national origin *fn4 and his status as an illegal alien in imposing sentence, and (2) exceeded its authority by telling the prosecutor to take all necessary steps to effect appellant's deportation after he had served his sentence. We affirm.

I.

On August 9, 1991, Mr. Yemson was arrested when he tried to get a $2,500 cash advance on a credit card which he had fraudulently obtained from a bank by using a false name. After being charged with forgery and released on a $15,000 bond, he fled the country. When he failed to appear at his scheduled preliminary hearing, the court issued a bench warrant for his arrest.

More than a year and a half later, on March 6, 1993, Mr. Yemson was detained by Immigration and Naturalization Service (INS) agents upon his arrival at Kennedy International Airport in New York. He waived extradition and was transported to the District of Columbia to face the charges against him. After being indicted on nine counts of credit card fraud and one count of attempted credit card fraud, in addition to receiving stolen property and violating the Bail Reform Act, Yemson pleaded guilty to three charges as noted above. He was released on his personal recognizance and ordered to return for his sentencing hearing. Once again, however, he fled the country and did not appear in court for sentencing; consequently, another bench warrant was issued for his arrest.

Some time thereafter Mr. Yemson re-entered the United States, and in 1997 he was convicted in federal court in New York on new charges of forgery, telecommunications fraud, and illegal re-entry into the United States after deportation. He served an eighteen-month prison term in a federal penitentiary and was then returned to the District of Columbia for sentencing in the instant case.

On September 16, 1998, the court sentenced Mr. Yemson to consecutive prison terms of three to nine years for credit card fraud, one year for receiving stolen property, and one year for violating the Bail Reform Act. Each of these sentences was within the statutory limit for the offense charged. In addition, he was ordered to pay $40 to the Crime Victims Compensation Fund.

During the sentencing hearing, the judge asked counsel to advise her of the current status of the case, the exact charges to which Mr. Yemson had pleaded guilty, and the possible sentences available for those offenses. In the course of the ensuing discussion, the judge learned that Mr. Yemson had twice fled the country while charges were pending against him, that he had been deported on other occasions, and that he had been convicted of illegal re-entry after deportation. Mr. Yemson now asserts that the judge's questions and comments *fn5 impermissibly injected his ethnicity and his status as an illegal alien into the sentencing proceedings and resulted in a sentence harsher than the judge might otherwise have imposed.

II.

Because even an illegal alien has a right to due process, a court imposing sentence in a criminal case may not treat the defendant more harshly than any other defendant "solely because of [his] nationality or alien status. That obviously would be unconstitutional." United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986). This does not mean, however, that a sentencing court, in deciding what sentence to impose, must close its eyes to the defendant's status as an illegal alien and his history of violating the law, including any law related to immigration. Indeed, "[t]he sentencing court . . . must be permitted to consider any and all information that reasonably might bear on the proper sentence for the particular defendant, given the crime committed." Wasman v. United States, 468 U.S. 559, 563-564 (1984) (citing Williams v. New York, 337 U.S. 241, 247 (1949)). This discretion includes the right to consider information concerning other illegal acts in which the defendant has been involved if that information may reasonably bear on the sentencing decision. See Wasman, 468 U.S. at 569-570. So long as the sentence imposed is within statutory limits, as the sentences in this case are, we will not disturb it unless it has a "fundamental defect." Johnson v. United States, 628 A.2d 1009, 1015 (D.C. 1993); accord, e.g., Foster v. United States, 290 A.2d 176, 179 (D.C. 1972). We find no such defect here.

In order to prevail on this appeal, Mr. Yemson must show that the sentencing court's comments about his national origin and his status as an illegal alien bore no reasonable relationship to his established pattern of misconduct and that those comments formed the actual basis for the imposition of an enhanced sentence. Our review "begins and ends with a review of the record." United States v. Borrero-Isaza, 887 F.2d 1349, 1353 (9th Cir. 1989). Furthermore, because Mr. Yemson makes this assertion for the first time on appeal, having said nothing at all about it in the trial court, we review his claim solely for plain error. E.g., Brawner v. United States, 745 A.2d ...


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