USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1437
UNITED STATES,
Appellee,
v.
ALLAN ROBERTO GUEVARA-LOPEZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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George M. Hepner, III on brief for appellant.
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Jay P. McCloskey, United States Attorney, Frederick C. Emery,
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Jr., and Margaret D. McGaughey, Assistant United States Attorneys, on
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brief for appellee.
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August 6, 1996
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Per Curiam. Allan Roberto Guevara-Lopez appeals
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from his sentence for illegal reentry after deportation in
violation of 8 U.S.C. 1326 (a) and (b)(2). His sole
argument on appeal is that the district court misinterpreted
Section 2L1.2 of the United States Sentencing Guidelines in
imposing a 16-level enhancement to his base offense level
because he had been "previously deported after a conviction
for an aggravated felony." U.S.S.G. 2L1.2(b)(2).
The issue presented by this case is the meaning of the
term "deported" for purposes of 2L1.2(b)(2). We review
that question of law de novo. See United States v. DiSanto,
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86 F.3d 1238, 1244 (1st Cir. 1996). "[A]lthough [the
sentencing guidelines] are not statutes, [they] are to be
construed in much the same fashion." United States v. DeLuca,
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17 F.3d 6, 10 (1st Cir. 1994). Therefore, construction of
the relevant guideline section should begin "'by looking at
the language of the law' and by examining the 'ordinary,
contemporary, common meaning' of the words." United States v.
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Holmquist, 36 F.3d 154, 159 (1st Cir. 1994) (citations
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omitted), cert. denied, __ U.S. __, 115 S. Ct. 1797 (1995).
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There is nothing inconsistent or ambiguous about the use
of the term "deported" in 2L1.2 itself. That guideline
section, however, "implements the statutory sentence
enhancement provisions of 8 U.S.C. 1326(b)." United States
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v. Restrepo-Aguilar, 74 F.3d 361, 363 n.2 (1st Cir. 1996).
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We will accept for the purposes of this appeal the conclusion
that the use of the term "deported" in 1326 and other
sections of that statute is "not entirely unambiguous."
United States v. Cooke, 850 F. Supp. 302, 303 (E.D. Pa.
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1994), aff'd, 47 F.3d 1162 (3d Cir. 1995).
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We agree with the sentencing court, however, that the
purposes and underlying policy of U.S.S.G. 2L1.2(b)(2)
remove any ambiguity that might otherwise exist regarding the
meaning of "deported" in that context. We interpret the
word's meaning in light of the purposes of 2L1.2(B)(2). See
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United States v. Caron, 77 F.3d 1, 3 (1st Cir. 1996)("'[a]s
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in all cases of statutory construction, our task is to
interpret the words of [the statute] in light of the purposes
Congress sought to serve'"); see also Holmquist, 36 F.3d at
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160 ("a statute must be read as a whole, with due regard for
its object, purposes and underlying policy").
Underlying the relevant guideline section are the
following policy determinations by the Sentencing Commission:
that the offense of unlawful reentry subsequent to
perpetrating an aggravated felony is sufficiently
more serious than the commission of the same
offense while toting less weighty baggage and,
thus, warrants greater punishment, [and] that an
alien who, having been deported following a
conviction for an aggravated felony, and having
exhibited a willingness to flout our laws again by
reentering the country without permission, may be
more likely to commit serious crimes than an alien
who unlawfully reenters this country with no
criminal record or with a less sullied record, and,
thus, deserves a sentence possessing greater
deterrent impact.
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United States v. Zapata, 1 F.3d 46, 49 (1st Cir. 1993).
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The interpretation of "deported" urged by appellant is
plainly inconsistent with the purposes and underlying policy
of 2L1.2. It is the fact that a defendant has committed an
aggravated felony in this country that makes his crime of
reentry more serious and deserving of greater punishment.
That the aggravated felony was committed after an order of
deportation was issued (but before the order was executed)
does not at all reduce the seriousness of the crime of
reentry or the need for a greater deterrent to reentry. See
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Cooke, 850 F. Supp. at 306.
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If 2L1.2 were aimed at producing sentences that
differed based upon the reason for the deportation order,
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then appellant's argument might have some merit. An
aggravated felony conviction that follows a deportation order
cannot have been the reason for the order. The commentary
to 2L1.2, however, specifically provides that "'[d]eported
after a conviction' . . . means the deportation was
subsequent to the conviction, whether or not the deportation
was in response to such conviction." 2L1.2, comment. (n.6).
Therefore, the Sentencing Commission clearly did not intend
to increase the punishment only for defendants who were
deported because of an aggravated felony conviction.
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Appellant argues that the meaning of the relevant
guideline provision is sufficiently ambiguous that the rule
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of lenity requires resolution in his favor. We have
explained the rule of lenity as follows:
When all else fails to bring sufficient
lucidity to the meaning of the penal statute, the
rule of lenity casts the decisive vote. That rule,
which mandates the resolution of ambiguities in a
criminal statute favorably to the defendant is a
'background principle that comes into play when, at
the end of a thorough inquiry, the meaning of a
criminal statute remains obscure.'
United States v. Gibbens, 25 F.3d 28, 35 (1st Cir. 1994)
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(citations omitted). In this case, the meaning of the
relevant guidelines provision does not "remain[] obscure."
The purposes and underlying policies of 2L1.2(b)(2) remove
any possible ambiguity created by the alleged inconsistent
use of the term "deportation" in the Immigration and
Nationality Act. Therefore, the rule of lenity does not come
into play.
Appellant's sentence is summarily affirmed. See Loc. R.
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27.1.
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