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Nigerian immigrant Christian Odion is in jail for committing a crime he couldn’t avoid, his lawyer says. Odion pleaded guilty April 5 to “being found” in the United States after being deported in 1995. His lawyer, Gerard J. Lupa, says the charge is unconstitutional, because it doesn’t let immigrants know what behavior they have to avoid to escape charges. Odion, he says, could not “be found” on his own. He needed the help of an INS agent. U.S. v. Odion, No. 1:00-CR-064 (N.D. Ga. April 5, 2000). “In our case the defendant ‘commits’ the crime of being found when an agent of the government actually finds him. What is the behavior proscribed? Getting caught?” Lupa wrote in his challenge to the pre-sentencing report. The provision’s vagueness and contradictions allow the government to set the date of an offense to maximize the penalty. Had Odion pleaded guilty to an “illegal entry” charge, Lupa says, he would face sentencing under the law in 1995, when he entered. The “being found” charge allows the government to apply the much tougher sentencing guidelines of the 1996 Immigration Act. Odion’s sentence would jump from 10-16 months to 51-63 months, Lupa says. DEPORTED IN ’94 The INS deported Odion on July 20, 1994, after a 1993 federal conviction for bank fraud in Greenville, S.C. Odion, a native of Nigeria, had stolen $27,613. Under the law at the time, this was not an aggravated felony as defined by the INS. However, after the 1996 act, any fraud involving the loss of more than $10,000 became an aggravated felony. An INS agent found Odion in Cobb County Jail in Georgia on forgery charges in 1999. Atlanta immigration lawyer Charles H. Kuck says the “being found” charge is fairly common in other federal districts, especially those on the Mexican border. “Here it’s only just now coming into vogue,” he says. When Odion’s sentencing hearing comes up Aug. 24 before Senior District Court Judge G. Ernest Tidwell, Lupa says he will challenge the “being found” provision of 8 USC 1326 as unconstitutionally vague. The language seems to require the state’s help in the commission of a crime, he says, and the INS is using the provision’s vagueness to slap his client with a higher sentence. “What other offense requires the participation of a government official?” he says. However, in his sentencing memorandum Assistant U.S. Attorney William G. Traynor notes that Odion’s real offense is illegally re-entering the United States. Odion knew he could avoid committing the crime by staying out of the United States. The INS warned Odion of the consequence of coming back when it first deported him in 1994. “That warning advised the defendant that he would be subject to prosecution if he entered, attempted to enter, or was “at any time found” in the United States without first obtaining the attorney general’s permission to reapply for admission to the country, Traynor wrote. “The defendant chose to ignore that warning, and that he succeeded in unlawfully entering the country does not, as he now seems to claim, insulate him from the crime of being found in the United States.” Lupa objects to the characterization of Odion’s offense as one of “re-entry.” As set out in U.S. v. Castrillion-Gonzales 77 F. 3d. 403 (11th Cir. 1996), the 11th Circuit has recognized three separate and distinct offenses in the immigration statute: entering illegally, attempting to enter illegally, or being found living illegally in the U.S., Lupa says. “It is reasonable to believe that because a ‘being found’ offense is an offense without the traditional elements of actus reus or a mens rea, Congress chose to penalize it less severely than ‘attempting to’ or ‘reentry’ offenses which would require a guilty act and mind for conviction along with difficult proof of the same by the government,” he wrote. RESULT’S THE SAME? However, according to the report of U.S. Probation Officer James L. Elder, it doesn’t matter what Lupa or Odion call the offense. The result is the same. “Regardless of the phrasing of this offense as Illegal Reentry or Being Found in the United States, the defendant is subject to the enhanced statutory penalty at 8 U.S.C. 1326(b),” Elder wrote in his addendum to the pre-sentencing report. That section sets out a maximum 20-year penalty for an illegal alien who reenters the Unites States after deportation and has an aggravated felony on his record. However, Lupa says that if Odion’s real crime is reentry into the U.S., he should be sentenced under the law that governed when he committed the crime, not under the 1996 law that could put him away for much longer. Allowing the government to claim that the crime is not complete until a federal agent finds an alien gives federal agents too much power, Lupa says. “This allows too wide a latitude to a government agent who may or may not arrest someone and complete the crime, and without whom no crime occurs.” If Odion committed the crime of re-entry, he should be charged with re-entry, Lupa says, and sentenced in accordance with the date he committed that crime, in 1995. “That might be what they’re (the INS) trying to say,” he says. “But they ought to say it right.” Lupa also objected to characterizing Odion’s fraud crimes as aggravated felonies. When Odion committed them, they didn’t fall into that category, he says. However, recent federal rulings in most federal circuits have effectively held that the INS may interpret the seriousness of a crime however it likes. Lupa says he would like the judge to find that Odion committed the offense of reentry before the new definition of aggravated felony, and thus only enhance his sentence by four levels. He says he’s not sure how his argument will play out but says he’s considering an appeal if he loses. “I don’t really feel like this is parsing or anything,” he says. “This is real.”

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