
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1667                                    UNITED STATES,                                      Appellee,                                          v.                                   GERALDO O'CAMPO,                                 A/K/A REYES FAMILIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Owen S. Walker on brief for appellant.            ______________            Donald  K.   Stern,  United   States  Attorney,   and  Jeanne   M.            __________________                                     ___________        Kempthorne, Assistant United States Attorney, on brief for appellee.        __________                                 ____________________                                  September 2, 1994                                 ____________________                 Per Curiam.  Defendant Geraldo O'Campo, a citizen of the                 __________            Dominican  Republic, was  deported to  that country  in March            1991 after  having been  convicted of various  drug offenses.            He   thereafter  returned   to  the  United   States  without            permission.   Upon  being apprehended  in July  1992, he  was            indicted on a single  count of violating 8 U.S.C.     1326(a)            and  (b)(2).1  He subsequently pled guilty to this charge and            received  a prison term of 46 months.  Defendant now advances            a single challenge to his sentence, arguing that the district            court mistakenly concluded it  lacked the authority to depart            downward in one  particular respect.   We find  no error  and            therefore affirm.  See Loc. R. 27.1.                                ___                                          I.                 At issue  is a November 1,  1991 revision to    2L1.2 of            the Sentencing Guidelines,  which governs  the offense  here.            In  its earlier form, this  section prescribed a base offense            level  of  8,  provided  for  a  4-level increase  "[i]f  the            defendant   previously  was   deported  after   sustaining  a                                            ____________________            1.  This statute provides in pertinent part as follows:                 (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,                 ... shall be fined under [Title 18], imprisoned not                 more than 15 years, or both.                                          -2-            conviction  for  a  felony,"   and  stated  that  "an  upward            departure may be warranted"  where the earlier conviction had            consisted  of  an aggravated  felony.    U.S.S.G.    2L1.2  &            comment. (n.3) (Nov. 1990).  The revised version provides for            a  mandatory 16-level  enhancement  in  all  such  aggravated            felony  cases.   U.S.S.G.    2L1.2(b)(2)  (Nov.  1991).   The            amendment thus "converted the discretionary choice whether to            increase   the   penalty  for   [aggravated   felons]   to  a            requirement, by instructing the court to add 16 points to the            calculation of their total offense level."   United States v.                                                         _____________            Rodriguez, 26 F.3d 4, 7 (1st Cir. 1994).            _________                 Defendant's argument  for a downward departure hinges on            his factual assertion that he reentered the country in August            1991, before this amendment took effect.  While not disputing            the  amendment's applicability  per  se, he  argues that  the            "real crime" sought to be proscribed by   1326 is  the act of            reentry.    Sent. Tr.  at 7.   In  his  view, because  he had            already returned  to this country  by the time  the amendment            took effect, applying the  full 16-level enhancement to him--            "without  advance  warning  and  without  an  opportunity  to            conform his conduct accordingly,"  Brief at 5--would serve no            deterrent value.   He concludes that,  inasmuch as deterrence            was one of the purposes underlying the 1991 amendment, see 18                                                                   ___            U.S.C.    3553(a)(2)(B), this circumstance is  one that would            justify a downward departure.   The district court disagreed,                                         -3-            holding that  it lacked the  authority to do  so.   We review            this  determination de  novo.   See,  e.g., United  States v.                                ________    ___   ____  ______________            Rivera, 994 F.2d 942, 951 (1st Cir. 1993).            ______                                         II.                 Even accepting defendant's premise regarding the date of            reentry  (a  matter  hardly  free  of  doubt),2  we find  his            argument  unpersuasive for  three  reasons.   First, it  runs            contrary to our recent decision in United States v. Smith, 14                                               _____________    _____            F.3d  662 (1st  Cir. 1994).   The  INS there  had erroneously            advised Smith at  the time  of deportation  that the  maximum            penalty  for unlawful  return was  two years  of imprisonment                                            ____________________            2.  While  defendant told  the probation  office that  he had            reentered  the  country  in   August  1991,  he  had  earlier            submitted a sworn statement  to INS officials indicating that            he had returned in  February 1992.  At sentencing,  defendant            insisted  this   latter  statement   was  the  result   of  a            misunderstanding (apparently due to his lack of facility with            the English  language),  and  requested  the  opportunity  to            establish,  through the  testimony of  himself and  his wife,            that  the  August 1991  date was  the  correct one.   Without            addressing  this  request,  the  court  announced a  contrary            finding.  After first indicating that it lacked the authority            to depart downward, it stated:                      I  am not  moreover persuaded  that he  did in                 fact arrive in August  of '91.  He did  tell I.N.S.                 he arrived in February [1992], and given that fact,                 I will not depart.            Sent. Tr. at 28.   Yet when defendant thereafter  renewed his            request to present evidence  supporting the August 1991 date,            id. at 32,  the court  mentioned only its  perceived lack  of            ___            discretion to undertake a departure, id. at 35.                                                 ___                 To the extent the court intended to rest its decision in            the  alternative  on  this  factual  finding,  of  course,  a            separate basis for affirmance would exist.  Given the modicum            of ambiguity in  the record, however, we think  it preferable            to address defendant's legal argument on the merits.                                             -4-            (rather than fifteen years).   Smith argued that,  because he            had  relied  on this  notice in  deciding  to return,  he was            entitled to a downward  departure.  We agreed with  the lower            court that this was  not the kind of circumstance  that would            justify such a  departure.  A contrary  conclusion would have            "countenance[d]  Smith's  purposeful  decision to  engage  in            felonious conduct," in derogation  of the goals of deterrence            and promoting respect for the law.  Id. at 666; accord United                                                ___         ______ ______            States v. Ullyses-Salazar, ___  F.3d ___, 1994 WL 267956,  at            ______    _______________            *3 to *4  (9th Cir. June  20, 1994).   So here, defendant  is            seeking "the benefit of a downward departure [simply] because            [he] understood  the penalty he  would face to  be relatively            minor."  Smith, 14 F.3d at 666.                      _____                 As a  related matter, defendant overlooks  the fact that            the former version of   2L1.2 encouraged upward departures in            cases  of  aggravated  felons.    Even  under  that  version,            therefore, defendant could have  received a sentence at least            approximating  the one  imposed here.   See United  States v.                                                    ___ ______________            Campbell, 967 F.2d 20,  27 (2d Cir. 1992) (relying in part on            ________            the  subsequently enacted  16-level enhancement  in order  to            find  size of  such  an upward  departure  reasonable).   Cf.                                                                      ___            United States v.  Aymelek, 926  F.2d 64, 71  (1st Cir.  1991)            _____________     _______            (upholding upward  departure imposed  to take account  of the            "lag  time" between  the increased  statutory penalties  in              1326 and "the corresponding update of the guidelines").                                         -5-                 Most important, defendant's focus  on the act of reentry            is  misplaced.   As we  have  recently explained,  a deported            alien  may commit an offense  under   1326  on three separate            occasions:  when  he or  she  (1) "enters"  the  country, (2)            "attempts to enter" the country, or (3) "is at any time found            in" the country.  See Rodriguez, 26  F.3d at 8; United States                              ___ _________                 _____________            v. Troncoso, 23  F.3d 612,  615 (1st Cir.  1994).   Defendant               ________            here was indicted for, and pled guilty to, the crime of being            "found  in" the  country following  deportation.  This  is as            much  a "real crime" (to use defendant's parlance) as are the            acts  of entry  or  attempted entry.3    Indeed,    2L1.2  is            entitled  "Unlawfully  Entering  or Remaining  in  the United                                                _____________            States."  (Emphasis added).  Cf. United States v.  Whittaker,                                         ___ _____________     _________            999  F.2d  38,  42-43  (2d  Cir.  1993)  (   1326  adequately            "informed [defendant]  that, if  he remained in  this country            following  his  illegal  reentry,  he  would  be  subject  to            criminal  prosecution when he  was 'found' here").   Once the            amendment took  effect, defendant  had  the opportunity,  and                                            ____________________            3.  For this  reason, we  held in Rodriguez  that applying                                                 _________            2L1.2's 16-level  enhancement to  an alien who  had reentered            the  country prior  to  November 1991  but  had been  "found"            thereafter entailed no ex  post facto violation.  26  F.3d at                                   ______________            7-8; accord,  e.g., United States v. Whittaker,  999 F.2d 38,                 ______   ____  _____________    _________            40-42 (2d Cir. 1993); United States v. Gonzales, 988 F.2d 16,                                  _____________    ________            18 (5th Cir.), cert. denied,  114 S. Ct. 170 (1993).   On the                           ____________            same rationale, we  held in  Troncoso that no  ex post  facto                                         ________          ______________            difficulties arose from applying the increased penalties in              1326(b)(2)  to one who had reentered prior to their enactment            but been found thereafter.  23 F.3d at 615.                                          -6-            should  have  had an  increased  incentive,  to "conform  his            conduct accordingly" by departing from the country.                   For these  reasons, we agree  with the lower  court that            the circumstances here are not of a kind that would warrant a            downward departure.   Cf. United States v.  Polanco, ___ F.3d                                  ___ _____________     _______            ___, ___ n.3, 1994 WL 361092 (2d  Cir. July 12, 1994) (noting            in   2L1.2(b)(2) case,  involving defendant who had reentered            the  country in 1990 and  been discovered in  1992, that "the            Guidelines more than adequately account for the circumstances            underlying the offense conduct here"); United States v. Maul-                                                   _____________    _____            Valverde, 10  F.3d 544, 546-47 (8th  Cir. 1993) (invalidating            ________            downward departure  imposed by  lower court in    2L1.2(b)(2)            case because  of age of aggravated  felony, while recognizing            that  departure in  either  direction may  be appropriate  in            "unusual" case).                  Affirmed.                 _________                                         -7-
