United States of America v. Jose Guadalupe Rico-Hernandez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4129
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UNITED STATES OF AMERICA
v.
JOSE GUADALUPE RICO-HERNANDEZ,
Appellant.
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-07-cr-00744-1)
District Judge: The Honorable Berle M. Schiller
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Submitted Under Third Circuit LAR 34.1(a)
October 1, 2009
BEFORE: McKEE, CHAGARES, and NYGAARD, Circuit Judges.
(Filed: October 27, 2009)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant Jose Rico-Hernandez, an aggravated felon, pleaded guilty to the crime
of illegally re-entering the United States after deportation, a violation of 8 U.S.C. §
1326(a), (b)(2). He was sentenced to 72-months imprisonment, a term of supervised
release and, relevant to this appeal, fined $100,000.00. He appeals only the imposition of
the fine, arguing that it exceeds the maximum amount authorized by statute and that it is
violative of the Eighth Amendment’s prohibition against excessive fines. We will affirm.
Appellant is a citizen of Mexico and had entered the United States illegally. He
was convicted of aggravated assault in 2005 in Bucks County, Pennsylvania and while on
parole arrested by agents of the Immigration and Customs Enforcement agency (ICE). He
was deported in November of 2006. In October of 2007, Appellant was arrested in
Bensalem, Pennsylvania. Appellant was subsequently indicted on one count of illegal re-
entry by an aggravated felon after deportation. He pleaded guilty to this offense.
During his sentencing hearing, the Government urged the District Court to impose
a sentence that would have a deterrent effect. The Government pointed out that when
first deported, Appellant told ICE Agents that he “had no intention of abiding by the laws
of this country because he, in fact . . . would only get prosecuted if he got caught.”
Opting for a sentence at the low end of the Guideline range, the District Court sentenced
Appellant to 72-months imprisonment, but levied a fine of $100,000.00 against the
Appellant.

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On appeal, Rico-Hernandez challenges only the imposition of the fine. However,
he argues neither the reasonableness of his fine nor that he lacks the ability to pay the
fine. Instead Rick-Hernandez submits that the fine was illegal because it exceeds the
statutory maximum permitted by the applicable statute. He maintains that his fine should
be set by whichever state criminal code he violated when he committed the aggravated
felony in 2005. This is incorrect as a matter of law. He pleaded guilty to a violation of 8
U.S.C. § 1326(b), which provides criminal penalties for the “re-entry of certain removed
aliens.” The statute reserves the harshest penalties for those illegal re-entrants who have
been previously convicted of an aggravated felony. United States v. Soto-Ornelas, 312
F.3d 1167, 1170 (10th Cir. 2002) citing 8 U.S.C. § 1326(b)(2). Section 1326(b) provides
for the imposition of a fine, but does not specify an amount. Therefore, the District Court
correctly turned to 18 U.S.C. § 3571 which sets the maximum amount of a fine for a
felony at $250,000.00. Because Rico-Hernandez’ fine of $100,000.00 does not exceed
the statutory maximum set forth in 18 U.S.C. § 3571(b)(3), it was not levied contrary to
law.
Rico-Hernandez also maintains that the fine violates the Excessive Fines Clause of
the Eighth Amendment to the Constitution. He failed to raise this argument before the
District Court, so we review for plain error. See United States v. Campbell, 295 F.3d 398,
404 (3d Cir. 2002). The Eighth Amendment’s Excessive Fines Clause limits the
Government's power to extract payments, whether in cash or in kind, as punishment for

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some offense. See Alexander v. United States, 509 U.S. 544, 558-59 (1993) (internal
quotation marks omitted). A fine violates the Excessive Fines Clause when it is grossly
disproportional to the gravity of the offense. United States v. Bajakajian, 524 U.S. 321,
334 (1998).
As we have determined, the maximum fine for illegal re-entry into the United
States by an aggravated felon is $250,000.00. At $100,000, Rico-Hernandez’ fine is not
disproportionate to the statutory maximum fine of $250,000 per offense. See United
States v. Newsome, 322 F.3d 328, 342 (4th Cir. 2003) (finding no Eighth Amendment
violation for restitution order that was not disproportionate either to the actual loss or to
the statutorily authorized fine). We find no plain error and will affirm the imposition of
the fine by the District Court.

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