USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1590
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS JULIO RODRIGUEZ
aka Jose Ramirez,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Eileen M. Donoghue, by Appointment of the Court, for appellant.
__________________
Robert E. Richardson, Assistant United States Attorney, with whom
____________________
Donald K. Stern, United States Attorney, was on brief for appellee.
_______________
____________________
June 17, 1994
____________________
COFFIN, Senior Circuit Judge. Carlos Julio Rodriguez
______________________
appeals his sentence for illegal reentry into the United States
after deportation, 8 U.S.C. 1326. We affirm.
I. Factual Background
__________________
In April 1991, Rodriguez, a Colombian citizen, was deported
from Boston to Colombia. The following September, Rodriguez
reentered the United States illegally. On December 19, 1991,
agents from the Immigration and Naturalization Service (INS),
acting on a tip, found and arrested Rodriguez at a bar in
Chelsea, Massachusetts. A federal grand jury subsequently
returned a one count indictment charging Rodriguez with a
violation of 8 U.S.C. 1326(a) and (b)(2).1
On November 4, 1992, Rodriguez pled guilty to a violation of
8 U.S.C. 1326(a).2 Rodriguez' presentence report (PSR)
computed his total offense level at 21: 8 points were assigned as
the base offense level under 8 U.S.C. 1326, 16 points were
added for his previous conviction for an aggravated felony, and 3
____________________
1This statute provides, in pertinent part, that:
(a) [A]ny alien who --
(1) has been arrested and deported or excluded and deported,
and thereafter
(2) enters, attempts to enter, or is at any time found in,
the United States . . . [and]
(b)(2) whose deportation was subsequent to a conviction for
commission of an aggravated felony, such alien shall be
fined under such Title, imprisoned not more than 15 years,
or both.
2At his plea hearing, the court accepted the parties'
stipulation to consider Section (b)(2) as a sentencing factor,
and not as an element of the offense. We have since affirmed
this view. See United States v. Forbes, 16 F.3d 1294, 1300 (1st
___ _____________ ______
Cir. 1994) (holding that Section (b)(2) is a sentence enhancement
factor).
-2-
points were subtracted for acceptance of responsibility and
timely notifying authorities of his intention to plead guilty.
See U.S.S.G. 2L1.2(a), (b)(2); 3E1.1(b)(2). Taken together
___
with a criminal history category of III, this calculation
resulted in a recommended sentencing range of 46-57 months
imprisonment and 24-36 months supervised release.
The district court accepted the PSR recommendation, finding
that Rodriguez' two convictions for possession with intent to
distribute an illegal drug, in violation of Mass. Gen. L. ch. 94C
32A, were "aggravated felonies" within the meaning of
1326(b)(2). The court also ruled that Rodriguez' offense
occurred when he was found in the United States in December 1991,
and, therefore, that application of the November 1991 amendments
to the Sentencing Guidelines did not violate the ex post facto
__ ____ _____
clause of the Constitution. Accordingly, the court sentenced
Rodriguez to 48 months imprisonment, followed by 24 months of
supervised release. This appeal followed.
Rodriguez contends that his Massachusetts' convictions are
not "aggravated" felonies within the meaning of federal law, and
that the district court therefore erred by using them to enhance
his base offense level by 16 points. He also reiterates his
claim that the application of the November 1991 Guidelines to his
conviction violates the ex post facto clause, and that he should
__ ____ _____
have been sentenced under the Guidelines in effect in September
1991, the date of his reentry into the United States.
-3-
II. Aggravated Felony Determination
_______________________________
Section 1326(b)(2) provides an enhanced penalty for deported
aliens who illegally reenter the United States following
conviction for an aggravated felony. Our cases establish that a
drug offense is an aggravated felony within the meaning of
Section 1326 and the applicable Sentencing Guidelines, U.S.S.G.
2L1.2(b)(2), if it is a "drug trafficking crime" as defined in 18
U.S.C. 924(c)(2). See United States v. Forbes, 16 F.3d 1294,
___ _____________ ______
1301 (1st Cir. 1994); Amaral v. I.N.S., 977 F.2d 33, 35 (1st Cir.
______ ______
1992). Under that section, a drug felony is a "drug trafficking
crime" if it is punishable under any one of three statutes: (1)
the Controlled Substances Act, 21 U.S.C. 801 et seq.; (2) the
Controlled Substances Import and Export Act, 21 U.S.C. 951 et
seq.; or (3) the Maritime Drug Law Enforcement Act, 46 App.
U.S.C. 1901 et seq.
Rodriguez argues that his state convictions are not
aggravated felonies, and therefore not subject to enhancement as
such, because they are not for "trafficking" crimes. This
argument is meritless. Rodriguez' Massachusetts convictions are
trafficking crimes for purposes of Section 1326 because they are
punishable under the Controlled Substances Act. See 21 U.S.C.
___
844(a) (punishing simple possession of controlled substances).3
____________________
3Rodriguez also contends that his convictions are not
trafficking crimes under state law. This argument misses the
mark. We have held that federal, not state, definitions govern
under the Guidelines. United States v. Unger, 915 F.2d 759, 762-
_____________ _____
63 (1st Cir. 1990); United States v. Aymelek, 926 F.2d 64, 71-2
_____________ _______
(1st Cir. 1991).
-4-
See Forbes, 16 F.3d 1294, 1301 (state possession convictions
___ ______
which would be felonies under 21 U.S.C. 844(a) treated as
aggravated felonies under U.S.S.G. 2L1.2(b)(2)).
Rodriguez argues that this conclusion unfairly converts
virtually all predicate drug crimes into aggravated felonies,
thus rendering meaningless, for drug offenses, the distinction
under Section 1326 and the applicable Guidelines between felonies
and aggravated felonies. We recognize that this definition of
"aggravated felony" may be rather harsh for drug offenders. We
are not at liberty, however, to rewrite the statutory scheme.
We therefore conclude that the district court properly added
16 points to Rodriguez' base offense level in computing his
sentence under the Guidelines.
III. Ex Post Facto Claim
___________________
Rodriguez illegally reentered the United States on September
5, 1991. At that time, the relevant Sentencing Guidelines
provided for a base offense level of 8, a 4-level increase "[i]f
the defendant previously was deported after sustaining a
conviction for a felony," U.S.S.G. 2L1.2 (Nov. 1990), and, if
the conviction was for an aggravated felony, "an upward departure
may be warranted." Id., comment (n.3).
___
Rodriguez was not found in the United States, however, until
December 19, 1991. Between the time of his entry and the time of
his arrest, the Guidelines were amended to increase the penalty
for a conviction under Section 1326 where deportation followed
conviction for an aggravated felony. U.S.S.G. 2L1.2(b)(2)
-5-
(Nov. 1991). These amendments, effective November 1, 1991,
converted the discretionary choice whether to increase the
penalty for this class of defendants to a requirement, by
instructing the court to add 16 points to the calculation of
their total offense level. Id.
___
Rodriguez argues that the district court should have
sentenced him under the Guidelines in effect on September 5,
1991, the date he entered the United States, because that is when
he violated Section 1326. The district court's application of
the November 1991 Guidelines violates the ex post facto clause of
__ ____ _____
the Constitution, he claims, because the amendments increase the
sentence applicable at the time he committed the crime.
The government counters that 8 U.S.C. 1326(a)(2) describes
three separate occasions on which a deported alien can commit an
offense under the statute: when he or she (1) illegally enters
the United States; (2) attempts illegally to enter the United
States; or (3) is found in the United States. They point out
that the indictment explicitly charged Rodriguez, and he pleaded
guilty to, having been found in the United States on December 19,
_____
1991, over a month and a half after the November 1991 Guidelines'
amendments.4 Application of these amendments to Rodriguez'
____________________
4Alternatively, the government urges this court to
characterize Section 1326(a) as a continuing offense. Other
courts, in discussing the application of the statute of
limitations, have come to differing conclusions regarding whether
this statute describes a continuing offense. Compare, e.g.,
_______ ____
United States v. DiSantillo, 615 F.2d 128, 132-37 (3d Cir. 1980)
______________ __________
(crime of illegal entry through recognized Immigration and
Naturalization port of entry after being arrested and deported
not a continuing offense, so as to toll applicable statute of
-6-
offense, they contend, therefore does not violate the ex post
__ ____
facto clause.
_____
Barring any ex post facto concerns, a defendant ordinarily
__ ____ _____
should be sentenced according to the Guidelines in effect at the
time of sentencing. 18 U.S.C. 3553(a)(4); United States v.
_____________
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990). However,
__________
when a guideline amendment increases the punishment imposed, the
ex post facto clause of the Constitution prevents retroactive
__ ____ _____
application of the guideline to offenses committed prior to the
effective date of the amendment. In such a case, the guideline
in effect at the time the crime was committed must be used. See
___
U.S. Const. art. I, 9, cl.3; United States v. Molina, 952 F.2d
_____________ ______
14, 522-23 (D.C. Cir. 1992). Determining whether application of
the November 1991 Guidelines violated the ex post facto clause
__ ____ _____
requires us to decide when Rodriguez committed the offense: when
he crossed the border on September 1991, or when he was caught,
on December 19, 1991?
As the Supreme Court has stated in interpreting a different
section of the Immigration and Nationality Act of 1952, "`[t]he
cardinal principle of statutory construction is to save and not
to destroy.' It is our duty `to give effect, if possible, to
every clause and word of a statute.'" United States v. Menasche,
_____________ ________
____________________
limitations for as long as alien remains in the country) with
____
United States v. Bruno, 328 F. Supp. 815, 825 (D. Mo. 1975)
______________ _____
(criminal conduct of being found in the United States after
having been excluded and deported continues so long as alien is
present in the United States).
Because we conclude that Section 1326(a) describes three
separate offenses, we need not reach this issue.
-7-
348 U.S. 528, 538-39 (1955) (citations omitted). Applying this
principle, we think it plain that "enters," "attempts to enter,"
and "is at any time found in" describe three distinct occasions
on which a deported alien can violate Section 1326. The phrase
"found in" otherwise would be surplusage, because it would be
redundant with "enters." Accord United States v. Whittaker, 999
______ _____________ _________
F.2d 38, 41-43 (2d Cir. 1993); United States v. Gonzales, 988
_____________ ________
F.2d 16, 18 (5th Cir. 1993); United States v. Alvarez-Quintero,
_____________ ________________
788 F. Supp. 132, 133-34 (D.R.I. 1992).
This construction is consistent with the legislative history
discussed in United States v. DiSantillo, 615 F.2d 128, 134-35
_____________ __________
(3d Cir. 1980). In DiSantillo, the court noted that when
__________
Congress reenacted the statute in 1952, it added the term
"found," but did not remove "enters." Id. at 135. In so doing,
___
the court concluded, Congress must have intended to broaden the
statute to include the crime committed when an alien enters the
United States surreptitiously, of which the INS would have no
official record, as well as the crimes committed by entry or
attempted entry through regular immigration procedures. There is
no other apparent reason for retaining the word "enters." Id.
___
The court was persuaded that the amendment was aimed at ensuring
that aliens who were not apprehended as they reentered the
country nevertheless could be prosecuted for unlawful entry
whenever they were found. See also United States v. Canals-
___ ____ _____________ _______
Jimenez, 943 F.2d 1284, 1286-89 (11th Cir. 1991) (following
_______
DiSantillo in concluding that an alien who had sought admission
__________
-8-
through recognized immigration port of entry, and thus was
physically "in" the country, could not be prosecuted under the
"found in" clause, because that clause was intended to apply to
aliens who have entered surreptitiously).
In this case, regardless of when he entered the United
States, Rodriguez violated the statute when he was "found" here
on December 19, 1991, and he pled guilty to the crime of being
"found in" the United States at that time. Accordingly,
application of the November 1991 Guidelines in computing his
offense level does not violate the ex post facto clause.
__ ____ _____
The decision of the district court is therefore AFFIRMED.
________________________________________________________
-9-
