
USCA1 Opinion

	




                                      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1116                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                 OMAR MARTIN ZAPATA, a/k/a OMAR MARTIN ZAPATA-MEDINA,                              a/k/a OMAR ZAPATA MARTIN,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                              _________________________               Lenore Glaser on brief for appellant.               _____________               A. John  Pappalardo, United  States Attorney, and  Jeanne M.               ___________________                                _________          Kempthorne,  Assistant  United  States  Attorney,  on  brief  for          __________          appellee.                              _________________________                                    July 19, 1993                              _________________________                    SELYA,  Circuit  Judge.     In  this  criminal  appeal,                    SELYA,  Circuit  Judge.                            ______________          defendant-appellant Omar Martin Zapata-Medina (Zapata), an alien,          claims  that the  court below  impermissibly "double  counted" in          calculating  the guideline sentencing  range (GSR)  applicable to          his  case.    Concluding  that  Zapata's  sentence  was  lawfully          constituted, we affirm.                                          I                                          I                    The  facts relevant  to this  appeal are  not disputed.          The government deported Zapata  in 1990, following his conviction          on a state drug-trafficking  charge for which he served  142 days          in  prison (the remainder of  his term of  immurement having been          suspended).    Under  applicable  federal  law,  Zapata's   prior          conviction is classified as an aggravated felony.  See 8 U.S.C.                                                               ___          1101(a)(43).   The deportation did not stick:  Zapata returned to          the  United States sub rosa  in 1992.   Once apprehended, he pled                             ___ ____          guilty  to a  charge that he  had violated  8 U.S.C.    1326(a) &          (b)(2).1                    At sentencing,  the district  court calculated Zapata's          offense level  and criminal history category (CHC)  in the manner          directed  by  the  federal  sentencing guidelines.2    The  court                                        ____________________               1These  subsections  stipulate  in  the  aggregate that  any          "alien  who .  . .  has been  arrested and  deported .  . .,  and          thereafter  . .  . is  . . .  found in  . .  . the  United States          [without the express consent of the Attorney General, and] . .  .          whose deportation  was subsequent to a  conviction for commission          of an aggravated felony, . . . shall be [punished as provided]."               2As  a matter of general  interest, we note  that Zapata was          sentenced on December 1, 1992; hence, the November,  1992 version          of  the guidelines applied.  See United States v. Harotunian, 920                                       ___ _____________    __________          F.2d 1040, 1041-42  (1st Cir. 1990) (directing that, except where                                          2          started  with a  base  offense level  of  eight, see  U.S.S.G.                                                              ___          2L1.2(a),  increased  the  offense   level  to  twenty-four,  see                                                                        ___          U.S.S.G.   2L1.2(b)(2) (directing  a sixteen-level increase for a          defendant who has entered  the United States unlawfully following          deportation "after  a conviction for an  aggravated felony"), and          subtracted three  levels for  acceptance  of responsibility,  see                                                                        ___          U.S.S.G.   3E1.1, thereby  reaching an adjusted offense  level of          twenty-one.                    The district  court's calculation of  Zapata's CHC lies          at the heart  of this appeal.   Under   U.S.S.G.   4A1.1(b),  two          criminal  history points are to be added "for each prior sentence          of  imprisonment" of  sixty  days  or  more.    The  term  "prior          sentence"   means   "any   sentence   previously   imposed   upon          adjudication of guilt, whether by guilty plea [or otherwise], for          conduct  not   part  of  the   instant  offense."     U.S.S.G.             4A1.2(a)(1).   The district court invoked  this provision, adding          two  points to Zapata's criminal  history score by  reason of the          prior  narcotics  conviction   (notwithstanding  that  the  prior          conviction  had already  been  used  to  ratchet up  his  offense          level).  The  two criminal history points  boosted appellant over          the line into CHC II and upped the GSR to 41-51 months.                    After the district  court sentenced appellant to forty-                                        ____________________          necessary to  avoid ex post facto problems, "a defendant is to be                              __ ____ _____          punished  in   accordance  with  the  guidelines   in  effect  at          sentencing").  Although the district court signalled an intention          to use the November, 1991 version of the guidelines, this appears          to have been a slip of  the tongue.  Because the district court's          calculations  faithfully track  the  November, 1992  version,  we          disregard the lapsus linguae.                        ______ _______                                          3          one months in  prison, this appeal arose.   In it, Zapata assigns          error solely  to the  double counting  of his  original narcotics          conviction.                                          II                                          II                    In  the  sentencing  context,  double  counting   is  a          phenomenon  that is  less sinister  than the  name implies.   The          practice is often  perfectly proper.   This case illustrates  the          point:  the double  counting in which the district  court engaged          did  not stray  into forbidden  territory.   Rather, the  court's          methodology   carefully   tracked  the   Sentencing  Commission's          interpretive  comment, which states  specifically that an offense          level  increase  for  a  prior felony  conviction  under  section          2L1.2(b)  "applies in  addition  to any  criminal history  points                             ________________          added for  such  conviction in  Chapter  Four, Part  A  (Criminal          History)."  U.S.S.G.   2L1.2, comment. (n.5) (emphasis supplied).          As a general rule,  courts should strive to apply  the guidelines          as  written,  giving full  force  and  effect  to the  Sentencing          Commission's interpretive commentary and application notes.   See                                                                        ___          Stinson  v. United States, 113  S. Ct. 1913,  1915 (1993); United          _______     _____________                                  ______          States v. Jones, ___ F.2d ___, ___ (1st Cir. 1993)  [No. 93-1189,          ______    _____          slip op. at 6]; see also United States v. Williams, 954 F.2d 204,                          ___ ____ _____________    ________          206  (4th Cir. 1992) (approving double counting on the basis that          the  sentencing   guidelines  must  be  "applied   as  written").          Although  there are  exceptions to  the general rule,  see, e.g.,                                                                 ___  ____          Stinson,  113 S. Ct. at  1915 (explaining that  commentary may be          _______          disregarded  if  "it  violates  the  Constitution  or  a  federal                                          4          statute, or is inconsistent with, or a plainly erroneous  reading          of,  [a] guideline"); United States v. Fiore,  983 F.2d 1, 2 (1st                                _____________    _____          Cir. 1992) (stating that courts "should defer to the Commission's          suggested interpretation  of  a guideline  provision  unless  the          Commission's  position  is arbitrary,  unreasonable, inconsistent          with the  guideline's text, or  contrary to law"),  cert. denied,                                                              _____ ______          113  S.  Ct.  1830 (1993),  no  such  exception  applies in  this          instance.  To the contrary, note  5 strikes us as fully consonant          with constitutional  understandings, relevant statutory  law, and          the text of the applicable guideline provisions.                    Furthermore, the case law offers  a ringing endorsement          for   the  district  court's  use  of   double  counting  in  the          circumstances  at hand.  Indeed, in United States v. Adeleke, 968                                              _____________    _______          F.2d 1159 (11th Cir. 1992), the Eleventh  Circuit flatly rejected          a  challenge virtually identical to that mounted by Zapata.3  The          Adeleke court determined that  the Sentencing Commission intended          _______          a  prior felony  conviction to  be used  in calculating  both the          offense level and the CHC  in a Title 8  case.  See id. at  1161.                                                          ___ ___          The  court  found support  for this  conclusion  not only  in the          Commission's interpretive commentary  but also in  the sentencing                                        ____________________               3Adeleke involved an  alien found in the United States after                _______          he  had  been deported  following  an  earlier conviction  for  a          garden-variety  "felony."    See  8  U.S.C.     1326(b)(1).    In                                       ___          contrast, the  case before  us  involves 8  U.S.C.    1326(b)(2),          which pertains  to an alien  convicted of an  "aggravated felony"          prior  to  deportation.   Because  the  only material  difference          concerns the seriousness of the prior felony conviction, we think          that "(b)(1)" cases, like Adeleke, are relevant authority  when a                                    _______          court ponders the permissibility of double counting in a "(b)(2)"          case.                                          5          calculus itself.  In  this respect, the  court viewed the use  of          the  same conviction  for "conceptually  separate notions"  about          sentencing  to  be  permissible,  explaining  that  the  criminal          history adjustment is "designed to punish likely recidivists more          severely, while the [offense level] enhancement . . . is designed          to deter  aliens who have  been convicted  of a  felony from  re-          entering the United States."  Id. (citation omitted).                                        ___                    In  United States  v. Campbell, 967 F.2d  20, 22-23 (2d                        _____________     ________          Cir. 1992), a case involving an alien convicted under the statute          at issue  here but  sentenced  pursuant to  an earlier,  somewhat          different version of the  guidelines, the Second Circuit employed          a  similar rationale  to  sustain the  two-fold  use of  a  prior          conviction.    The  district  court  double  counted  a  previous          aggravated felony conviction in calculating the offense level and          CHC,  respectively, for  an  alien who,  like Zapata,  unlawfully          reentered the  United States.  Id.  at 23.  The  court of appeals                                         ___          affirmed,  noting that,  although the  prior conviction  had been          used  twice in  constructing  the defendant's  sentence, the  two          usages measured  different things:  on one  occasion, the offense          level, which represents  the Sentencing Commission's  judgment as          to the  wrongfulness of the  unlawful entry  under the  attendant          circumstances;  and  on  the  second  occasion,  the  CHC,  which          estimates  the  likelihood  of  recidivism with  respect  to  the          particular alien who achieves the illegal reentry.  Id. at 24-25.                                                              ___                    Adeleke  and  Campbell  mirror  the  analytic  approach                    _______       ________          adopted by  this court in  United States v.  Sanders, 982 F.2d  4                                     _____________     _______                                          6          (1st Cir. 1992), cert.  denied, 61 U.S.L.W. 3818 (1993).   There,                           _____  ______          we found double counting to  be permissible because the guideline          in question plainly directed the court to use a single factor   a          conviction for carrying a firearm in the course of a drug crime            in two different ways:  first,  to calculate the offense level of          an armed career criminal, and second, to calculate the criminal's          CHC.  See id. at 6.                ___ ___                    We see no reason to retreat from these principles or to          skirt  their  application in  the  instant  case.   Congress  has          delegated  to  the  Sentencing   Commission  the  twin  tasks  of          determining (1)  which factors should be  considered in punishing          and  deterring  criminals,  and  (2)  the  methodology  by  which          punishment-related and deterrence-related factors should be taken          into account in constructing a  particular sentence.  See  United                                                                ___  ______          States  v. La Guardia, 902 F.2d 1010, 1015 (1st Cir. 1990).  In a          ______     __________          carefully calibrated scheme aimed  at producing sentencing ranges          that will differ  depending upon  the existence and  nature of  a          prior felony conviction, section 2L1.2 expresses two things:  (1)          the Commission's determination that the incidence and  attributes          of  a  prior felony  conviction should  be  weighed by  courts in          sentencing  a  special  class   of  aliens  who  have  unlawfully          reentered  the United  States, and  (2) the  Commission's related          decision  that  the methodology  best  suited  to achieving  both          punishment and  deterrence is to consider the relevant aspects of          such a conviction in  calculating not only the offense  level but                                          7          also the CHC.4                    We  have  said  enough   on  this  score.    Since  the          sentencing scheme that the Commission has devised for the offense          of conviction is plausible  as a whole and not  inconsistent with          statutory law  or constitutional precepts,  we cannot  substitute          our judgment for that of the Commission.  This  means, of course,          that we can second-guess  neither the Commission's  determination          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,   nor  its   allied          determination 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.   Cf.,                                                                       ___          e.g.,  id. at 1015 (explaining that, since the Commission is free          ____   ___          to  determine the  extent to  which substantial  assistance by  a          defendant  should warrant a downward departure  and to fashion an                                        ____________________               4U.S.S.G.   2L1.2(a)  establishes a base offense  level of 8          for aliens unlawfully entering the United States.   The guideline          provides a  four-level increase  for  aliens previously  deported          after  conviction  for a  non-immigration-related, non-aggravated          felony, id. at   2L1.2(b)(1), and a sixteen-level increase if the                  ___          previous conviction was for an  aggravated felony.  See id. at                                                                 ___ ___          2L1.2(b)(2).  Other aspects of the sentencing scheme, such as how          it  treats misdemeanors, see id., comment. (n.1), are not germane                                   ___ ___          for present purposes and, therefore, need not be discussed.                                          8          implementing methodology, it  is not for  the courts to  question          the  wisdom of rational choices  made by the  Commission in these          respects).                    We hold,  therefore, that to the extent the same factor          reflects both the seriousness of an offense and the likelihood of          a particular  defendant's recidivism, it may  be considered twice          in  sentencing    for  the  separate purposes  of  punishment and          deterrence    so  long as  the Commission,  expressly or  by fair          implication, so directs.   Cf. United States v. Newman,  982 F.2d                                     ___ _____________    ______          665,  672-75 (1st  Cir.  1992)  (holding  double counting  to  be          permissible in a  situation where it was  expressly authorized by          the applicable guideline and  helped to effectuate the Sentencing          Commission's  "carefully  calibrated  offense   level  adjustment          scheme"), petition for cert. filed (U.S. Apr. 22, 1993).  Because                    ________________________          the ruling  below falls  squarely within  this  ambit, we  reject          appellant's claim of error.                                         III                                         III                    Appellant has another string to his bow.  Citing United                                                                     ______          States  v.  Campos-Martinez, 976  F.2d  589 (9th  Cir.  1992), he          ______      _______________          asseverates  that,  because his  prior  felony  conviction is  an          element of the  crime to  which he pled  guilty, double  counting          conflicts  with what he terms  a "clear policy  of the Sentencing          Commission to avoid double counting when the specific behavior is          an  element  of  the  crime  for  which  the  defendant  will  be          sentenced."    Appellant's  Brief at  6.    Appellant bases  this          argument  on the combined force of three items:  (1) the language                                          9          of  U.S.S.G.     4A1.2(a)(1)  (defining a  "prior  sentence"  for          purposes of computing a defendant's criminal history score as any          sentence "for conduct not  part of the instant offense");  (2) an          introductory  comment to  Chapter 3,  Part D,  of  the sentencing          guidelines (discussing  the need  for grouping rules  "to prevent          multiple   punishment   for   substantially   identical   offense          conduct");  and (3)  a multifaceted  analogy to  several specific          instances  in which the Commission, having employed an element of          the offense in fixing the base offense level, thereafter chose to          eschew  any double  counting.    See,  e.g., U.S.S.G.      3A1.1,                                           ___   ____          comment.  (n.2)  (discussing  vulnerability  of  victim),  3A1.3,          comment.   (n.2)   (discussing   restraint  of   victim),   3B1.3          (discussing  abuse  of  special  trust),  3C1.1,  comment.  (n.6)          (discussing obstruction  of justice);  see also United  States v.                                                 ___ ____ ______________          Plaza-Garcia,  914 F.2d  345 (1st  Cir. 1990) (applying    3A1.1,          ____________          comment. (n.2)).                    Placing three legs under  the asseverational stool does          not render it capable of bearing the load that appellant rests on          it.  The first two arguments can be considered in tandem.  As the          government points  out, both  the definition of  "prior sentence"          and  the caveat  to the  grouping rules  focus on the  problem of          punishing a defendant twice for the same conduct.  By like token,                                      ____________________          the  concern  expressed  by  the  Sentencing  Commission  in  the          introductory comment  to Chapter 3,  Part D applies  to multiple-          count   indictments     a   situation  where,  prototypically,  a          defendant's  guilt  on several  counts  may  flow  from the  same                                          10          underlying  conduct.   The  case  at  bar presents  a  materially          different set  of circumstances.   Although Zapata's  prior drug-          trafficking  conviction may  well  be an  element of  the offense          stated by 8 U.S.C.    1326(b)(2),5 the conduct which  resulted in          that conviction is clearly separate and distinct from the conduct          at issue here.  In other words, section 1326(b)(2) does not focus          on appellant's earlier behavior,  but on appellant's status  as a                                 ________                      ______          previously   convicted  felon.     This   distinction  completely          undermines appellant's  reliance both  on U.S.S.G.    4A2.1(a)(1)          and  on  the introductory  comment to  the  grouping rules.   Cf.                                                                        ___          United  States v. Alessandroni, 982 F.2d 419, 421, 422 (10th Cir.          ______________    ____________          1992)  (upholding,  against a  similar  challenge  premised on             4A1.2(a)(1),  the  district  court's  consideration  of  a  prior          burglary conviction  in calculating  both the base  offense level          and the CHC applicable to a pending felon-in-possession count).                     The third  leg of  the stool  is no  more sturdy.   The          instances  appellant  cites   as  examples   of  the   Sentencing          Commission's policy against double counting simply do not support          the  suggested analogy.   Those instances,  like our  decision in          Plaza-Garcia, 914 F.2d at 347, do no more than illustrate  that a          ____________          given  factor  is not  to be  considered  twice in  calculating a          defendant's offense level.   See,  e.g., Jones, ___  F.2d at  ___                                       ___   ____  _____                                        ____________________               5At least one district  court has concluded that 8  U.S.C.            1326(a)  and (b)(2)  describe separate  and distinct  offenses so          that the government "must allege, as an element of a violation of             1326(b)(2), the  existence of  a defendant's  prior aggravated          felony conviction."   United States v.  Vieira-Candelario, 811 F.                                _____________     _________________          Supp. 762, 768 (D.R.I. 1993).  We take no view of this issue.                                          11          [slip op.  at 5-6]  (distinguishing Plaza-Garcia on  this basis).                                              ____________          For purposes of this  case, we accept the  premise that a  single          factor cannot be double counted in setting a  defendant's offense          level.   But, such instances  are not particularly instructive in          examining  the  different question  of  whether  a single  factor          (here, a prior conviction)  may be considered in connection  with          both  the  calculation of  a  defendant's offense  level  and the          calculation  of his CHC.   As we previously  indicated, see supra                                                                  ___ _____          Part  II, we believe that where the guidelines so provide, either          expressly  or  by fair  implication,  a single  factor  may serve          double  duty  in that  fashion.    See Newman,  982  F.2d  at 673                                             ___ ______          (holding  that the  Commission's  express prohibition  of  double          counting  in certain  instances  indicates its  intent to  permit          double counting  in other  instances); United States  v. Blakney,                                                 _____________     _______          941  F.2d 114,  117  (2d Cir.  1991)  (allowing consideration  of          defendant's  prior conviction  in  connection  with both  offense          level and CHC  calculations where the guidelines did  not provide          to the  contrary and the  general purposes underlying  each usage          differed).                                          IV                                          IV                    We  need go no further.   We conclude,  without serious          question,  that double counting of the type employed here   using          a single factor to influence  both the defendant's offense  level          and CHC   is permissible.   The double counting done in this case          is,  moreover,  faithful  to   the  tenor  and  purport   of  the          guidelines.   It follows that the lower court sentenced appellant                                          12          in  a lawful manner.  The judgment below is, therefore, summarily          affirmed.  See 1st Cir. Loc. R. 27.1.                     ___          Affirmed.          Affirmed.          ________                                          13
