United States v. Ernesto Ortiz-Martinez

Ernesto Ortiz-Martinez, an alien, was convicted of violating 8 U.S.C. § 1325 1 and 8 U.S.C. § 1326 2 , and was sentenced to two years’ imprisonment for each violation, with the sentences to run consecutively. The sole issue on appeal is whether consecutive sentencing is appropriate for violations of the two separate statutes in a single transaction.

In 1973 Ortiz-Martinez was convicted of entering the United States in violation of 8 U.S.C. § 1325 . He was deported. In 1976 he was found in the United States. He was indicted for a second violation of 8 U.S.C. § 1325 3 and for a violation of 8 U.S.C. *216 § 1326 , (reentry of a deported alien). He was convicted on both counts. The single illegal act of reentering the United States violated the two statutes.

Congress may authorize cumulative sentences for a single act that violates more than one statute when the offenses created by the statutes are not identical. United States v. Clements, 471 F.2d 1253, 1254 (9th Cir. 1972); cf. Iannelli v. United States, 420 U.S. 770 , 95 S.Ct. 1284 , 43 L.Ed.2d 616 (1975). However, in enacting statutes that are not identical but are closely related, Congress may unintentionally create liability…

dissenting:

I do not believe United States v. Clements, 471 F.2d 1253 (9th Cir. 1972), and the cases and principles reviewed therein dictate the conclusion reached by my colleagues. I respectfully dissent.

As the majority candidly notes, the facts in Clements can be distinguished from those present in this case. As stated in Clements and many other cases, statutes are not identical where a different set of ultimate facts must be proven in order to obtain a conviction on each count. Sections 1325 and 1326 of 8 U.S.C. are not identical in the essential and ultimate facts which must be proven. Under Section 1325 a prior violation of that section must be shown. Under Section 1326 a prior deportation and entry without the express consent of the Attorney General is required. Section 1325, as charged here, requires proof of willfulness, whereas Section 1326 requires only a general intent. Obviously, they were separately treated by Congress, entail separate punishments, and were enacted at the same time. From the face of the statutes, it seems clear that Congress intended to authorize multiple punishments and there is no reason to reach out for “rule of lenity” and apply a unitary…

557 F.2d 214 UNITED STATES of America, Appellee, v. Ernesto ORTIZ-MARTINEZ, Appellant. No. 76-3583. United States Court of Appeals, Ninth Circuit. July 13, 1977. Edward A. Applbaum, Douglas & Applbaum, San Diego, Cal., submitted brief for appellant. John P. Boyl, Asst. U.S. Atty., San Diego, Cal., on the brief, Terry J. Knoepp, U.S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before HUFSTEDLER, GOODWIN and ANDERSON, Circuit Judges. GOODWIN, Circuit Judge: 1 Ernesto Ortiz-Martinez, an alien, was convicted of violating 8 U.S.C. § 1325 1 and 8 U.S.C. § 1326 2 , and was sentenced to two years' imprisonment for each violation, with the sentences to run consecutively. The sole issue on appeal is whether consecutive sentencing is appropriate for violations of the two separate statutes in a single transaction. 2 In 1973 Ortiz-Martinez was convicted of entering the United States in violation of 8 U.S.C. § 1325 . He was deported. In 1976 he was found in the United States. He was indicted for a second violation of 8 U.S.C. § 1325 3 and for a violation of 8 U.S.C. § 1326 ,…