Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2006

USA v. Bowley
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2781




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Recommended Citation
"USA v. Bowley" (2006). 2006 Decisions. Paper 57.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/57


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                                            NOT PRECEDENTIAL


     IN THE UNITED STATES COURT
              OF APPEALS
         FOR THE THIRD CIRCUIT


                 NO. 06-2781


       UNITED STATES OF AMERICA

                      v.

             DWIGHT BOWLEY
                Appellant



      On Appeal From the District Court
 of the Virgin Islands, Division of St. Thomas
                  and St. John
    (D.C. Crim. Action No. 04-cr-00169-1)
    District Judge: Hon. Raymond L. Finch



Submitted Pursuant to Third Circuit LAR 34.1(a)
              December 7, 2006


BEFORE: McKEE, BARRY and STAPLETON,
            Circuit Judges

     (Opinion Filed: December 20, 2006)
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Appellant Dwight Bowley contends that the District Court, in the course of

sentencing him to sixty months of incarceration, erred in calculating his guideline range.

Finding no error, we will affirm the judgment of the District Court

       Appellant pled guilty to one count of unlawful re-entry after deportation in

violation of 8 U.S.C. §§ 1326(a) and (b)(2). The applicable Guideline section, U.S.S.G.

§ 2L1.2 provides:

       (a) Base Offense Level: 8

       (b) Specific Offense Characteristic

              (1) Apply the Greatest:

              If the defendant previously was deported, or unlawfully
              remained in the United States, after –

                     (A) a conviction for a felony that is (i) a drug
                     trafficking offense for which the sentence
                     imposed exceeded 13 months; (ii) a crime of
                     violence; (iii) a firearms offense; (iv) a child
                     pornography offense; (v) a national security or
                     terrorism offense; (vi) a human trafficking
                     offense; or (vii) an alien smuggling offense,
                     increase by 16 levels;

                     (B) a conviction for a felony drug trafficking
                     offense for which the sentence imposed was 13
                     months or less, increase by 12 levels;

                                             2
                       (C) a conviction by an aggravated felony,
                       increase by 8 levels;

                       (D) a conviction for any other felony, increase
                       by 4 levels; or

                       (E) three or more convictions for misdemeanors
                       that are crimes of violence or drug trafficking
                       offenses, in crease by 4 levels.

          Appellant acknowledges having a prior attempted robbery conviction that comes

within the scope of both subsection A and subsection C. He insists, however, that §

2L1.2 is ambiguous in this context, that the rule of lenity should apply, and, accordingly,

that the District Court’s 16 level enhancement was in error. We agree with the District

Court that § 2L1.2 unambiguously required it to “Apply the Greatest” and enhance by 16

levels.

          The judgment of the District Court will be affirmed.




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