USCA1 Opinion
June 27, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2148
UNITED STATES,
Appellee,
v.
JOSE CASTILLO-MORONTA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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David A. Cooper and Cooper & Sanchez on brief for appellant.
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Edwin J. Gale, United States Attorney, Margaret E. Curran and Ira
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Belkin, Assistant United States Attorneys, on brief for appellee.
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Per Curiam. Jose Castillo-Moronta pled guilty under 8
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U.S.C. 1326(b)(2) to unlawful reentry into the United
States following his deportation. He now advances a single
challenge to his sentence, arguing that the court erred in
imposing a 16-level enhancement to his offense level under
U.S.S.G. 2L1.2(b)(2) on the ground that he had been
deported after conviction for an "aggravated felony." His
sole argument is that the underlying offense triggering this
enhancement--a Rhode Island conviction for manufacturing
marijuana--does not constitute an aggravated felony. We
disagree and therefore summarily affirm. See Loc. R. 27.1.
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Echoing the definition contained in 8 U.S.C.
1101(a)(43), the commentary to 2L1.2 defines "aggravated
felony" to include "any illicit trafficking in any controlled
substance (as defined in 21 U.S.C. 802), including any drug
trafficking crime as defined in 18 U.S.C. 924(c)(2) ...."
U.S.S.G. 2L1.2, comment. (n.7). The commentary also states
that the term encompasses such offenses "whether in violation
of federal or state law." Id. The term "drug trafficking
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crime," in turn, is defined in 18 U.S.C. 924(c)(2) to
include "any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951 et seq.), or
the Maritime Drug Law Enforcement Act (46 U.S.C.App. 1901 et
seq.)." Accordingly, for a drug offense to fall within the
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scope of 924(c)(2) and thus within the definition of
aggravated felony, it must meet two criteria: "first, the
offense must be punishable under one of these three
enumerated statutes; and second, the offense must be a
felony." United States v. Forbes, 16 F.3d 1294, 1301 (1st
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Cir. 1994); accord, e.g., Amaral v. I.N.S., 977 F.2d 33, 35
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(1st Cir. 1992).
Both of these criteria are satisfied here.
Manufacturing a controlled substance, including marijuana, is
specifically proscribed by 21 U.S.C. 841(a)(1). And such
an offense constitutes a felony. As we explained in both of
the decisions just cited, a felony is defined in 21 U.S.C.
802(13) as "any Federal or State offense classified by
applicable Federal or State law as a felony."1 Under 18
U.S.C. 3559(a), an offense is a felony if the maximum
authorized term of imprisonment exceeds one year.2 Both 21
U.S.C. 841 and R.I. Gen. Laws 21-28-4.01(A)(2)(a)
prescribe a maximum prison term in excess of one year for the
offense of manufacturing a controlled substance.
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1. See also United States v. Aymelek, 926 F.2d 64, 71 (1st
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Cir. 1991) ("Although state law must still be examined to
ascertain the elements of a predicate offense, the
conviction's ultimate classification, for guidelines
purposes, is determined by federal law.") (applying 2L1.2).
2. Rhode Island law is to the same effect. See R.I. Gen.
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Laws 11-1-2.
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Defendant does not take issue with this reasoning.
Rather, he contends that a "mechanical application" of
2L1.2 here results in a sentence that exaggerates the
seriousness of his offense. He emphasizes that, far from
being involved in the manufacture or sale of drugs on any
large-scale basis, he was found in possession of a single
marijuana plant (along with a half-smoked marijuana
cigarette) which he claims was intended for his personal use
only. Yet this argument has no bearing on the applicability
of 2L1.2's 16-level enhancement; rather, it concerns the
propriety of a possible downward departure. See, e.g.,
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United States v. Hinds, 803 F. Supp. 675 (W.D.N.Y. 1992)
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(departing downward under analogous circumstances), aff'd
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mem., 992 F.2d 321 (2d Cir. 1993). Indeed, a good portion of
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the sentencing hearing was devoted to the question of whether
such a departure was warranted. The district court
ultimately decided, in its discretion, not to depart
downward, relying on other factors indicating that
defendant's overall conduct was less benign than it might
first appear.3 Defendant here has advanced no challenge to
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3. For example, defendant was convicted in 1988 of
possession of heroin. In 1991, he was convicted of using a
false social security number and making false statements to
purchase eleven pistols and a shotgun. Defendant was on
supervised release from the firearms offenses when he was
arrested on the marijuana charge. Among the items found in
his apartment at that time were over $28,000 in cash hidden
behind a refrigerator panel and 27 boxes of empty glassine
packets, which according to the police report are used to
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this determination, and we of course would lack jurisdiction
to entertain it had he done so. See, e.g., United States v.
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Gifford, 17 F.3d 462, 473 (1st Cir. 1994).
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Affirmed.
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package heroin. And in 1993, following his return to the
United States (which he explained was for the purpose of
visiting his three daughters), defendant was arrested for
attempting to pass counterfeit currency; he thereafter is
said to have provided police officials with a false name and
date of birth in an attempt to obstruct the investigation.
These charges remained pending at the time of sentencing.
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