

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-1473

                          UNITED STATES,

                            Appellee,

                                v.

                        MICHAEL P. FOSHER,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]                                                                 

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                    Cyr, Senior Circuit Judge,                                                       

                    and Stahl, Circuit Judge.                                                      

                                           

     George F.  Gormley, by appointment  of the court,  with whom                                 
John D. Colucci  and Gormley  &amp; Colucci, P.C.  were on  brief for                                                       
appellant.
     Alexandra Leake, Assistant United States Attorney, with whom                              
Donald  K.  Stern,  United  States  Attorney,  was on  brief  for                           
appellee.

                                           

                         August 27, 1997
                                           

          TORRUELLA,  Chief Judge.   On July 6,  1995, Defendant-                    TORRUELLA,  Chief Judge.                                           

Appellant Michael P. Fosher ("Fosher") pled guilty to four counts

of an indictment, which charged him with racketeering conspiracy,

in violation of 18 U.S.C.    1962(d), racketeering, in  violation

of  18  U.S.C.    1962(c),  interstate  transportation  of stolen

property, in  violation of 18  U.S.C.   2314, and  conspiracy, in

violation of  18 U.S.C.   371.  On  March 5, 1996, the sentencing

court  imposed  upward  adjustments for  an  unusually vulnerable

victim and for Fosher's  role in the offense.   The court further

determined  that Fosher's armed bank robbery conviction under the

Federal Youth Corrections Act, 18 U.S.C.   5005 et seq. ("FYCA"),                                                                 

previously set aside  pursuant to that Act, was properly included

in the Criminal History Category calculation.  The district court

calculated Fosher's  Total Offense Level  at 33 and  his Criminal

History  Category at  III, resulting  in  a guideline  sentencing

range of 168  to 210 months.   The government requested that,  in

light  of  Fosher's  substantial assistance,  the  court  grant a

downward departure under   5K1.1  and impose a 60 month sentence.

The court granted the government's downward departure motion, and

sentenced Fosher to 78 months' imprisonment.  Fosher  appeals his

sentence, arguing that  the district court  erred in its  rulings

regarding  the unusually vulnerable  victim and  the role  in the

offense  adjustments,  as  well  as  its  inclusion  in  Fosher's

Criminal History Category  of his set-aside conviction  under the

FYCA.  For the reasons set forth herein, we reverse and remand in

part and affirm in part.

                               -2-

                            BACKGROUND                                      BACKGROUND

          In  presenting the  facts, we  consult the  uncontested

portions  of  the  Presentence  Report ("PSR"),  as  well  as the

sentencing hearing transcript.  United States v. Lagasse, 87 F.3d                                                                  

18, 20 (1st Cir. 1996).

          In December 1991, Fosher called Michael Chinn ("Chinn")

from Florida and told Chinn that he would  pay Chinn's airfare to

Florida so  that they could  do "something big."   Chinn flew  to

Fort  Lauderdale with  Anthony  Corso  ("Corso").    The  airline

tickets for  both were  purchased by Fosher.   Chinn  stayed with

Fosher, while Corso  stayed with his father, Philip  Corso.  Upon

arrival  in Fort  Lauderdale, Chinn  and  Corso were  taken by  a

friend of Philip  Corso to a  restaurant to meet  Fosher and  Joe

Bomengo  ("Bomengo").   During  lunch, Fosher  told them  about a

house he had targeted  for a home invasion.  Donald  Marks Schoff

("Schoff") had told  Fosher that the house  contained $500,000 in

gold coins and a five carat diamond ring and was occupied by a 62

year old  woman, her daughter  and granddaughter.   Fosher stated

that he  wanted Chinn  and Corso  to  enter the  house, while  he

waited outside  in a  van and  Schoff waited  at the  end of  the

street listening to a police  scanner.  They also discussed using

weapons  and   Fosher  unsuccessfully  sought  weapons   from  an

acquaintance he ran into in the restaurant.

          Thereafter, Fosher,  Chinn, Corso, Bomengo,  and Schoff

met Philip  Corso at Corso's  house.  Schoff described  where the

                               -3-

money was kept.  The  participants looked at some guns  at Philip

Corso's  house and  wanted  to  borrow the  guns.   Philip  Corso

declined to let  the group use  the guns because  the guns  "were

hardly needed  since the  victim was  an older  woman."   At  the

meeting,  Bomengo suggested that the participants pose as florist

delivery  men.   Fosher determined  that  he would  rent a  white

minivan to  resemble  a  florist  delivery  truck.    During  the

discussion,  Fosher  made  decisions and  assigned  roles  to the

participants.

          On  the  morning  of January  8,  1992,  Fosher, Chinn,

Corso, and Schoff executed the home invasion.  Fosher, Chinn, and

Corso  drove to  the  victim's  house in  the  van, while  Schoff

followed in a second car.  On the way to the victim's house, they

purchased a floral arrangement and  gloves and "ties" to bind the

victims.    Corso and  Chinn  went  to the  front  door with  the

flowers.  When the victim came to the door, they entered.   Corso

asked her  for  the keys  to the  floor safe  in  the garage  and

attempted to open it.   Fosher and Schoff  entered the garage  to

help him.   Upon opening the safe, they  discovered only $500,000

worth  of gold coins.   They approached the  victim and asked her

where the other safe  and the five carat diamond ring  were.  The

men  took the  victim to  her  jewelry lockbox  and took  jewelry

valued at $23,000.   When they were  unable to find a  five carat

diamond, Fosher told Chinn, within the hearing of the victim, "if

she doesn't tell you where the other safe is, shoot her."   Chinn

told the victim that he would not let them hurt her.

                               -4-

          When they  left the  victim's house,  the four  went to

Fosher's condominium, where they divided the coins.   Fosher made

Corso throw away the jewelry for fear that it might allow someone

to  identify them.   Corso left  Florida soon  thereafter, taking

$80,000 in coins with him  to Massachusetts.  Chinn also returned

to  Massachusetts, carrying cash  received from Fosher  after the

coins had been melted down.

          On May 11,  1995, a federal grand jury  returned a five

count indictment against Fosher and Corso.  On  June  27,   1995,

Fosher executed a plea and  cooperation agreement with the United

States Attorney's Office, agreeing to plead guilty to four counts

of the indictment.1   The agreement provided that, at sentencing,

the  government would take  the position under  the United States

Sentencing Guidelines  ("U.S.S.G.") that  Fosher's offense  level

was 33, for which the guideline  sentencing range was 135 to  168

months.   The  agreement  noted  that  Fosher  objected  to  this

calculation and reserved  the right to argue for  a lower offense

level.    Fosher agreed  to  cooperate with  the  government and,

assuming  he provided substantial  assistance, the  U.S. Attorney

agreed to file a motion for a two level downward adjustment under

U.S.S.G.   5K1.1.

          On July  6,  1995, Fosher  pled  guilty to  Counts  One

through  Four.   At his  March 5,  1996, sentencing  hearing, the

probation department presented  its PSR, in which  the department

                                                  

1   The United States  Attorney's Office agreed to  dismissed the
fifth count.

                               -5-

concluded  that the  four  counts  constituted  seven  groups  of

offenses.    The  probation department  calculated  the  Adjusted

Offense Level  for  each  group and  determined  that  the  group

relating to  an  invasion and  robbery,  executed by  Fosher  and

others, of the  home of a 62  year old Fort Lauderdale  woman had

the highest Adjusted  Offense Level at 33.   This included a two-

level  upward adjustment for an unusually vulnerable victim under

U.S.S.G.   3A1.12 and a four-level  upward adjustment for being a

leader or organizer of five or more participants under U.S.S.G.  

3B1.1.3  After applying the grouping rules under U.S.S.G.   3D1.4

and  providing  for  a  downward  adjustment  for  acceptance  of

responsibility, the probation department  concluded that Fosher's

Total Offense Level was 33.

          The  probation   department  concluded   that  Fosher's

Criminal History Category was III, including in the calculation a

conviction for armed bank robbery under the FYCA.

                                                  

2  Section 3A1.1(b) provides in relevant part:

          If the  defendant knew  or should  have known
          that a  victim of the  offense was  unusually
          vulnerable  due to  age,  physical or  mental
          condition, . . . increase by 2 levels.

3  Section 3B1.1(a) provides in relevant part:

          Based on the defendant's role in the offense,
          increase the offense level as follows:

          (a)  If the  defendant was  an organizer
               or  leader of  a criminal  activity
               that   involved   five    or   more
               participants   or   was   otherwise
               extensive, increase by 4 levels.

                               -6-

          On  February 26, 1996,  Fosher filed objections  to the

upward adjustments  in calculation of  the offense level  for the

Fort Lauderdale  home invasion and  to the inclusion of  his FYCA

conviction  in the  Criminal History  Category  calculation.   He

argued that  the FYCA conviction should not be considered because

it  had been "set  aside" pursuant to  the FYCA on  September 24,

1982.

          At the  sentencing hearing,  the district court  agreed

with the findings  in the PSR and imposed  upward adjustments for

an  unusually vulnerable  victim  and for  Fosher's  role in  the

offense.    The  court  further  determined  that  Fosher's  FYCA

conviction was properly included in the Criminal History Category

calculation.  The  district court, therefore, set  Fosher's Total

Offense Level  at 33  and his Criminal  History Category  at III,

resulting in a  guideline sentencing range of 168  to 210 months.

The  government submitted a  motion requesting that,  in light of

Fosher's  substantial  assistance,  the court  grant  a  downward

departure and impose a 60-month  sentence.  The court allowed the

government's    5K1.1 downward  departure  motion, but  sentenced

Fosher to 78 months' imprisonment.

                            DISCUSSION                                      DISCUSSION

I.  Unusually vulnerable victim          I.  Unusually vulnerable victim

          The  government insists that  the issue of  whether the

victim  of the  Fort  Lauderdale  home  invasion  was  "unusually

vulnerable" is a factual issue and therefore that the clear error

standard applies.  Fosher argues  vigorously that the facts being

                               -7-

undisputed, the  only question  presented is a  legal one  of the

sentencing  court's application of  the guidelines to  the facts,

requiring de  novo review.    "[Q]uestions .  . .  of the  proper                            

application of  a legal  standard to undisputed  facts . .  . are

usually called 'mixed questions' of fact and law."  United States                                                                           

v. Wright,  973 F.2d 437, 442  (1st Cir. 1989).  As  our cases in                   

this   context  amply  demonstrate,  such  issues  of  sentencing

application  are   often  difficult   to  pigeonhole  as   either

predominantly factual  or legal.    See, e.g.,  United States  v.                                                                       

Newman,  982 F.2d  665, 671  (1st  Cir. 1992);  United States  v.                                                                       

Pilgrim Market  Corp., 944  F.2d 14, 16  (1st Cir.  1991); United                                                                           

States v. Cousens,  942 F.2d 800, 805-07 (1st  Cir. 1991); United                                                                           

States v.  Rule Indus., 878  F.2d 535,  542 n.7 (1st  Cir. 1989).                                

Because we  remand the unusually  vulnerable victim issue  to the

district  court  we need  not  decide the  difficult  standard of

review question.

          Section 3A1.1(b) of the Sentencing Guidelines calls for

a two level upward enhancement

          [i]f the defendant knew or should  have known
          that a  victim of  the offense  was unusually
          vulnerable  due to  age,  physical or  mental
          condition,  or that  a  victim was  otherwise
          particularly  susceptible  to   the  criminal
          conduct.

We  have recognized that  this guideline "is  primarily concerned

with the impaired capacity of the victim to detect or prevent the

crime, rather than the quantity  of harm suffered by the victim."

United States v.  Gill, 99 F.3d  484, 486 (1st  Cir. 1996).   The                                

question is  whether  "'a particular  victim was  less likely  to

                               -8-

thwart the crime, rather than  more likely to suffer harm  if the

crime is  successful.'"  Id.  (quoting United States v.  Kaye, 23                                                                       

F.3d 50, 54 (2d Cir. 1994)).

          We have discouraged  sentencing courts  from making  an

"unusually  vulnerable  victim"  finding  based  solely   on  the

victim's membership  in a particular  class.  Id. at  487; United                                                                           

States v. Feldman, 83 F.3d 9, 15 (1st Cir. 1996) ("[I]n  order to                           

warrant a  finding of unusual  vulnerability, there must  be some

evidence, above and beyond mere membership in a large class, that

the  victim possessed  a  special  weakness  that  the  defendant

exploited.").  At the same time, we have recognized  that in some

cases   inferences  to  be   drawn  regarding   particular  class

characteristics may be so strong  that "there can be little doubt

about unusual vulnerability  of class members within  the meaning

of  section  3A1.1."   Gill,  99  F.3d at  487.   The  Sentencing                                     

Commission recognized this when it  used as an example under this

section the  robbery of  someone confined to  a wheelchair.   See                                                                           

U.S.S.G.   3A1.1 comment. n.2; see also Gill, 99 F.3d at 487.                                                      

          We  are concerned with the application of section 3A1.1

in  the context  of  this case.    The PSR  revealed  that Fosher

surveyed the victim's home and determined that it was occupied by

an  elderly woman,  her  daughter,  and  her  daughter's  infant.

Following this surveillance, the perpetrators declined the use of

weapons to commit the robbery.  Based on the victim's age and the

perpetrators' decision  that  the use  of  weapons would  not  be

necessary,  the  district  court concluded  that  Fosher  knew or

                               -9-

should  have  known that  the  victim  in  this case  would  have

"impaired capacity" to prevent the  entry into and robbery of her

home.  From  our review of  the record, it  appears the  district

court failed to address the "individual characteristics" required

to  support a  finding  that a  particular  victim was  unusually

vulnerable.    Because of  this conclusion,  we must  remand this

issue to the district court for its consideration.

                               -10-

II.  Role in the offense          II.  Role in the offense

          We  review a  district  court's  role  in  the  offense

determinations  for clear error.   See United States v. D'Andrea,                                                                          

107 F.3d  949, 956 (1st Cir. 1997).   A court making a four-level

role-in-the-offense  adjustment under  U.S.S.G. section  3B1.1(a)

must  first  determine   "whether  the  defendant  acted   as  an

organizer/leader of  a specific  criminal activity.   If so,  the

court  asks  the  separate  question  of  whether  that  criminal

activity  involved  five  or more  participants,  defined  in the

Commentary as  persons who  are 'criminally  responsible for  the

commission of the  offense . . .  .'"  United States  v. Preakos,                                                                          

907  F.2d  7, 10  (1st  Cir.  1990)  (quoting U.S.S.G.     3B1.1,

Commentary).  In determining a  defendant's role in the  offense,

the  sentencing   court  need  not  look  only  to  the  elements

underlying the conviction,  but may  consider "the  whole of  the

defendant's relevant conduct."  United States v. Savoie, 985 F.2d                                                                 

612, 615 (1st  Cir. 1993); see also U.S.S.G. Ch. 3, Pt. B, intro.                                             

comment.  Fosher does not challenge the sentencing court's status

determination.   His  argument focuses  on  whether the  district

court  properly found five participants in  the home invasion and

robbery.

          The commentary defines a "participant" as "a person who

is criminally  responsible for the commission of the offense, but

need not  have been convicted."   U.S.S.G.   3B1.1  comment. app.

n.1.  Fosher concedes that there were four criminally responsible

participants:  him, Chinn, Corso,  and Schoff.  At the sentencing

                               -11-

hearing, the government argued that both Philip Corso and Bomengo

were criminally responsible participants even though they did not

actually participate in  the robbery.  We need  only confirm that

one  of them was  a criminally responsible  participant to affirm

the   district  court's  upward   adjustment.     Philip  Corso's

assistance  in devising the perpetrator's scheme is sufficient to

find  that  he  is  a  participant  within  the  meaning  of  the

guidelines.   Philip  Corso  assisted  Schoff  in  targeting  the

victim's home for the commission of this robbery, he provided the

home in which the planning meeting took place, he participated in

the planning meeting with the four robbery perpetrators,  and, in

response to  the perpetrators'  discussion regarding  the use  of

weapons, he  advised  against the  necessity of  weapons to  gain

entry into the victim's home.  Such acts were sufficient  to find

Philip  Corso to  be  a  participant in  the  commission of  this

robbery.  We therefore find no error in the district court's role

in the offense determination.

III.  Criminal History Category          III.  Criminal History Category

          In 1977,  Fosher was  convicted of  armed bank  robbery

under the Federal Youth Corrections Act, 18 U.S.C.   5005 et seq.                                                                           

(repealed  1984).  In  1982,  pursuant  to  the  Act's  set-aside

provisions,  see 18  U.S.C.    5021,  Fosher was  unconditionally                          

discharged and his conviction  was set aside.  Fosher  challenges

the sentencing court's inclusion of his FYCA set-aside conviction

in the calculation  of his Criminal History Category.   He claims

that his set-aside  conviction is to be treated  as an "expunged"

                               -12-

conviction under  U.S.S.G.   4A1.2.   We have yet  to address the

issue of whether a conviction set  aside under the FYCA should be

counted  under the Sentencing Guidelines.4   When faced with this

issue, a majority  of our sister circuits have ruled that an FYCA

conviction  may properly be included in calculating a defendant's

criminal history, see United States v. Moreno, 94 F.3d 1453 (10th                                                       

Cir.  1996); United  States v.  Nicolace, 90  F.3d 255  (8th Cir.                                                  

1996); United  States v. Wacker,  72 F.3d 1453 (10th  Cir. 1996);                                         

United  States v.  Levi, 45  F.3d  453 (D.C.  Cir. 1995);  United                                                                           

States v. Ashburn, 20 F.3d 1336 (5th Cir. 1994); United States v.                                                                        

Gardner,  860 F.2d  1391  (7th  Cir. 1988),  while  only one  has                 

determined   that  FYCA  convictions   are  similar  to  expunged

convictions  and should not  be considered under  the guidelines,

see United States v. Kammerdiener, 945 F.2d 300 (9th Cir. 1991).5                                           
                                                  

4   Fosher claims that two  opinions of this circuit  relating to
the  FYCA support his  contention that his  set-aside convictions
may not  be included in  calculating his criminal history.   Both
opinions  are  inapposite,  as  neither  was  decided  under  the
Sentencing Guidelines.   See United States v. Doe,  732 F.2d 229,                                                           
232 (1st Cir. 1984)  (ruling that FYCA does  not allow record  of
conviction to  be destroyed  and noting that  the FYCA  set aside
provision "prevents the fact of conviction from being used to the
youth offender's  legal detriment");  Mestre Morera  v. INS,  462                                                                     
F.2d 1030, 1032  (1st Cir. 1972) (in ruling  that FYCA conviction
may not  be used  to deport petitioner,  finding that  purpose of
FYCA is to give  an offender "a second chance, free  of all taint
of a conviction").

5    Fosher also  cites  opinions  from  two other  circuits  for
support,  but none  of those  opinions ruled that  FYCA set-aside
convictions are not  to be counted under  the guidelines criminal
history provisions.   See United States v. Corrado,  53 F.3d 620,                                                            
621 n.1 (3d Cir. 1995) (noting that government conceded that FYCA
conviction should not be counted); United States v. Doe, 980 F.2d                                                                 
876  (3d  Cir. 1992)  (ruling  that FYCA's  set  aside provisions
called  for  the  actual  removal   of  any  records  related  to
conviction); United States v. Beaulieau, 959 F.2d 375, 380-81 (2d                                                 

                               -13-

          Section 4A1.2(j) provides that expunged convictions are

not to be counted in  determining Criminal History Category.  The

Commentary provides the following:

          A  number   of  jurisdictions   have  various
          procedures   pursuant   to   which   previous
          convictions may be set aside or the defendant
          may  be  pardoned  for reasons  unrelated  to
          innocence or errors of law, e.g., in order to                                                    
          restore civil rights or  to remove the stigma
          associated   with   a   criminal  conviction.
          Sentences resulting from such convictions are
          to be counted.  However, expunged convictions
          are not to be counted.

U.S.S.G.   4A1.2,  comment app. note 10.   A set-aside  under the

FYCA is  made for  "reasons unrelated to  innocence or  errors of

law"  of the  type  that  the guidelines  contemplate  are to  be

considered  in calculating Criminal  History.  The  FYCA, section

5021, provided:

          (a)  Upon the unconditional  discharge by the
          Commission  of  a  committed  youth  offender
          before the expiration of the maximum sentence
          imposed  upon him,  the  conviction shall  be
          automatically  set aside  and the  Commission
          shall   issue  to   the   youth  offender   a
          certificate to that effect.

          (b)  Where  a youth offender has  been placed
          on probation  by  the court,  the  court  may
          thereafter,      in      its      discretion,
          unconditionally discharge such youth offender
          from probation prior to the expiration of the
          maximum period of probation theretofore fixed
          by   the   court,   which   discharge   shall
          automatically set  aside the  conviction, and
          the court shall issue to the youth offender a
          certificate to that effect.

                                                  

Cir. 1992)  (holding that  sealed record  under Vermont  juvenile
statute   was   improperly   considered   in   criminal   history
calculation).

                               -14-

18 U.S.C.    5021 (repealed).   The language of  the statute does

not call  for expunging a  youth offender's records,  but instead

mandates  that the youth offender  shall receive a certificate to

the effect that  the conviction has been set aside.  A conviction

under  the  FYCA is  set  aside  not because  of  legal  error or

innocence, but  because the offender's  "post-offense conduct has

persuaded the court to terminate his sentence of probation before

the assigned  completion date."   United States v.  McDonald, 991                                                                      

F.2d 866, 871 (D.C. Cir. 1993) (analyzing a set-aside  conviction

under  the  District  of  Columbia's  Youth  Rehabilitation  Act,

analogous to the FYCA).  The  FYCA's use of the term "set  aside"

is not  the  same  as the  Guideline's  treatment  of  "expunged"

convictions,  but is more analogous to the Guideline's definition

of a  "set aside" conviction,  one that is  to be counted  in the

criminal history  calculation.   Moreover, had Congress  intended

that all records of a youthful conviction  under the FYCA be made

completely  unavailable  or  destroyed such  that  they  could no

longer be considered for any future purposes, Congress could have

specified the remedy of expungement  rather than a certificate of

set-aside.  See United States v. Doe, 732 F.2d 229, 232 (1st Cir.                                              

1984)  (in affirming  district court's  refusal  to destroy  FYCA

records, noting that ordering expungement under the statute would

require a  rewriting of  the statute); Ashburn,  20 F.3d  at 1342                                                        

(collecting cases).

          In  determining  the  import  of  this  provision,  the

Supreme  Court noted  in  dicta  that the  FYCA  was intended  to

                               -15-

address  the   "numerous  civil  and  social  disabilities"  that

accompany a conviction, recognizing that "a conviction may result

in the  loss of the rights to  vote, to hold a  public office, to

serve  on  a  jury,  and  to  practice  various  occupations  and

professions."  Tuten v. United  States, 460 U.S. 660, 664 (1983).                                                

Although the FYCA was intended  to benefit a youthful offender by

providing  a second chance to start life  without the stigma of a

criminal conviction, id.  ("Congress' purpose in adopting    5021                                  

was to promote the rehabilitation of youth offenders by providing

a substantial  incentive for  positive behavior  while serving  a

sentence  under the YCA."); Webster, 606  F.2d at 1234-35 (noting                                             

that Congress  "intended to  give youthful  ex-offenders a  fresh

start,  free from  the stain  of  a criminal  conviction, and  an

opportunity to clean their slates to afford them a second chance,

in terms of both jobs and standing in the community"), it was not

meant to allow a recidivist to avoid increased penalties based on

earlier  criminal convictions.    See Ashburn,  20  F.3d at  1343                                                       

("[T]his beneficent offer  of a 'second  chance' to the  immature

offender  should not  be available  as a  shield for  those whose

original  encounter  with  the  criminal  world  is  used   as  a

springboard to a life of felonious conduct."); McDonald, 991 F.2d                                                                 

at 872  ("[I]f a juvenile  offender turns into a  recidivist, the

case for conferring  the benefit dissipates.   Society's stronger

interest is in punishing  appropriately an unrepentant criminal."

(citations  omitted)).     Thus,  counting   an  FYCA   set-aside

                               -16-

conviction in calculating  a defendant's criminal history  is not

contrary to the purposes of the FYCA.

          Fosher further  argues that  consideration of  the FYCA

conviction violates the ex post facto clause, U.S. Const. art. I,                                               

  9, cl. 3, because the law increases the punishment for his 1977

armed  robbery conviction.   An ex post  facto law is  one "'that                                                        

changes the punishment,  and inflicts a greater  punishment, than

the law  annexed to  the crime, when  committed.'"   Dominique v.                                                                        

Weld,  73 F.3d  1156, 1162  (1st  Cir. 1996)  (quoting Miller  v.                                                                       

Florida, 482 U.S. 423, 429 (1987)).  "The concern of the  ex post                                                                           

facto  prohibition is to assure that  legislative acts 'give fair               

warning of their  effect and permit individuals to  rely on their

meaning until explicitly changed.'"  United States  v. Forbes, 16                                                                       

F.3d 1294, 1301 (1st Cir. 1994) (quoting Miller, 482 U.S.  at 430                                                         

(1987)).  As  the Supreme Court has recognized,  a state habitual

offender  statute, which  increased  present  penalties based  on

prior criminal conduct, is not an ex post facto law, because  the                                                         

consideration of prior convictions imposes increased penalties to

the  "latest  crime, which  is  considered  to be  an  aggravated

offense because  a repetitive  one."  Gryger  v. Burke,  334 U.S.                                                                

728, 732 (1948), quoted in Forbes, 16 F.3d at 1302.  "Gryger thus                                                                      

recognized  the legislature's  authority  to  enact  an  enhanced

penalty  for future  conduct preceded  by  a criminal  conviction

obtained prior to  enactment of the enhanced  penalty provision."

Forbes, 16 F.3d  at 1302.  The district  court's consideration of                

                               -17-

Fosher's  FYCA  conviction  in determining  his  criminal history

category did not violate the ex post facto clause.                                                    

                            CONCLUSION                                      CONCLUSION

          For the  foregoing reasons,  we reverse  and remand  in                                                    reverse      remand                                                                       

part, and affirm in part.                    affirm                          

                               -18-
