
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1660                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                          AUGUSTO DEJESUS RESTREPO-AGUILAR,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Rosenn, Senior Circuit Judge,*                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Robert D. Watt, Jr., for appellant.            ___________________            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Sheldon  Whitehouse,  United  States  Attorney, and  Craig  N.  Moore,        ___________________                                  ________________        Assistant United  States  Attorney,  were  on brief,  for  the  United        States.                                 ____________________                                   January 30, 1996                                 ____________________                                    ____________________        *Of the Third Circuit, sitting by designation.                 LYNCH,  Circuit Judge.  Augusto Restrepo-Aguilar pleaded                         _____________            guilty to a charge of unlawful reentry into the United States            after deportation.   At sentencing, the  district court added            16 offense levels  under U.S.S.G.   2L1.2(b)(2)  to Restrepo-            Aguilar's Guidelines sentence, based on a finding that he had            been  previously   "deported  after   a  conviction   for  an            aggravated felony."   The sole issue presented is whether the            term  "aggravated felony"  as  used in    2L1.2(b)(2) of  the            Guidelines  includes as  a "felony"  a state  drug possession            offense that would be  only a misdemeanor under  federal law,            but is a felony under the laws of the convicting state.  This            question under the  Guidelines is one of  first impression in            this Circuit, and we answer  it in the affirmative.   We hold            that  the  district  court   was  required  to  increase  the            defendant's Guidelines sentence by  16 offense levels, and so            affirm.                                          I                 In 1985, Restrepo-Aguilar,  a citizen  of Colombia,  was            arrested by Rhode Island authorities on a charge of violating            the state's drug laws.   After cooperating with the  state in            obtaining the  arrests of others, he  pleaded nolo contendere                                                          ____ __________            to an amended charge  of simple cocaine possession, a  felony            under  Rhode  Island law,  punishable by  a maximum  of three            years in prison.  He was sentenced to 2 years of probation.                                         -2-                                          2                 In  December  of  1988,  a  federal deportation  warrant            issued  for  Restrepo-Aguilar's  arrest.    He   was  finally            apprehended  on  July 7,  1994,  in  Miami, Florida  and  was            subsequently  deported.   In January  of 1995,  he resurfaced            illegally in Providence, Rhode  Island, where he was arrested            by  Immigration  and  Naturalization   Service  agents.    He            admitted that he  had never applied for permission to reenter            the country.  He was indicted and pleaded guilty to one count            of unlawful reentry into the United States after deportation,            in violation of 8 U.S.C.   1326.                 The   defendant  was  sentenced  under    2L1.2  of  the            Sentencing Guidelines.1   That guideline sets  a base offense            level ("BOL") of 8 for a conviction of unlawfully entering or            remaining in the United States.  The guideline then provides:            "If the defendant previously  was deported after a conviction            for  an aggravated felony, increase  by 16 levels."  U.S.S.G.              2L1.2(b)(2) (Nov. 1994).2                                            ____________________            1.  Defendant was sentenced in  June 1995, under the November            1994  edition of the Guidelines.   All citations  are to that            edition.            2.  Section  2L1.2(b)  implements   the  statutory   sentence            enhancement provisions of 8 U.S.C.   1326(b), which increases            the  maximum  authorized  term  of  imprisonment  for  aliens            convicted  under  that  statute   who  previously  have  been            deported following a conviction for a felony or an aggravated            felony.  See United  States v. Forbes, 16 F.3d 1294, 1300 n.9                     ___ ______________    ______            (1st Cir. 1994).   The  term "aggravated felony"  as used  in              1326(b)(2)  is defined  at  8 U.S.C.    1101(a)(43).   That            definition is  substantially the  same (in relevant  part) as            the  one  that appears  in  application  note  7 to  U.S.S.G.              2L1.2.                                         -3-                                          3                 The sentencing court concluded that the defendant's pre-            deportation state  conviction  for possession  of cocaine,  a            felony under  Rhode Island  law, qualified as  an "aggravated            felony"  within the meaning of   2L1.2(b)(2), and accordingly            increased defendant's BOL from  8 to 24.  With  a three-level            reduction  for acceptance  of  responsibility under  U.S.S.G.              3E1.1, and  a criminal history category  of II, defendant's            Guidelines  sentencing range  was 41-51  months.3   The court            imposed a final sentence of 41 months.                 Restrepo-Aguilar  contends  that  because  a  first-time            conviction for  simple possession  of  cocaine is  punishable            only  as a  misdemeanor under  federal law,4  his 1985  state                                           _______            conviction for cocaine possession  cannot be classified as an            "aggravated   felony"   for   purposes   of   the  Sentencing            Guidelines.   The government argues that  an offense need not            be punishable as a felony under federal law in order to be an            "aggravated  felony"  under    2L1.2(b)(2)  so  long  as  the                                            ____________________            3.  In  contrast,  the   defendant's  total  offense   level,            adjusted   for   a   two-level  credit   for   acceptance  of            responsibility under U.S.S.G.   3E1.1(a), would have  been 6,            corresponding to a Guidelines  sentencing range of 1-7 months            (assuming  a  criminal  history   category  of  II),  had  no            enhancement been applied.            4.  Because a conviction under the  Controlled Substances Act            for  a  first offense  of  simple  possession of  cocaine  is            punishable by no more than one year in  prison, see 21 U.S.C.                                                            ___              844(a),   such  a  conviction  would  be   for  a  Class  A            misdemeanor under the general federal  classification scheme,            see 18 U.S.C.   3559(a).            ___                                         -4-                                          4            offense is punishable as a felony under the law  of the state            of conviction.                                          II                 The  controlling  definition  of  the  term  "aggravated            felony"  is  set  forth in  application  note  7 to  U.S.S.G.              2L1.2.  That commentary provides in relevant part:                 "Aggravated felony," as  used in subsection (b)(2),                 means   . . .  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);  . . .  or any                 attempt or conspiracy to commit  any such act.  The                 term  "aggravated  felony"   applies  to   offenses                 described  in  the  previous  sentence  whether  in                 violation of federal or state law . . . .            U.S.S.G.     2L1.2,  comment.  (n.7) (Nov.  1994).    Section            924(c)(2) provides, in turn:                  [T]he  term "drug  trafficking  crime"  means  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.).            18 U.S.C.   924(c)(2) (emphasis added).                  Restrepo-Aguilar   contends   that  his   1985   cocaine            possession offense  is excluded from the  definition of "drug            trafficking crime"  and is  not an "aggravated  felony" under              2L1.2(b)(2) because it would be classified as a misdemeanor            under federal  law.5   The question  posed, then,  is whether                                            ____________________            5.  He also  argues more broadly  that the offense  of simple            possession  of cocaine is not an aggravated felony because it            does  not   fall  within   the  common  definition   of  drug                                         -5-                                          5            first-time  cocaine  possession,  "whether  in  violation  of            federal or  state law," U.S.S.G.   2L1.2,  comment. (n.7), is            an "aggravated  felony" if  it is  a felony  under applicable            state law but is  punishable only as a misdemeanor  under the            federal Controlled Substances Act ("CSA").                  Restrepo-Aguilar  bases  his argument  on  a  particular            reading of the Guidelines  and on the recent decision  by the            Board of Immigration Appeals in In Re  L-G-, Interim Decision                                            ___________            3254, 1995 WL 582051  (BIA Sept. 27, 1995), interpreting  the            term  "aggravated felony"  under  the immigration  laws.   He            appropriately  concedes  that the  BIA's  decision is  flatly            inconsistent with the Second  Circuit's opinion in Jenkins v.                                                               _______            INS, 32 F.3d 11 (2d Cir. 1994), and that there is language in            ___            various opinions  by this  Circuit disfavoring  his position.            We  believe   that  the  text  of   the  relevant  provisions            forecloses his argument and that the Second Circuit's reading            is preferable to that of the BIA.                  The defendant's  interpretation is  not consistent  with            the  definition  of  "aggravated  felony" set  forth  in  the            commentary to    2L1.2.   His  argument  is contrary  to  the            application note's  instruction that the definition  is to be            applied to offenses "whether in violation of federal or state                                            ____________________            "trafficking."   We  reject this  contention without  further            discussion, as  it is clearly  foreclosed by the  decision of            this court in United  States v. Rodriguez, 26 F.3d  4, 6 (1st                          ______________    _________            Cir. 1994).                                         -6-                                          6            law."    It  also  contradicts  the  definition  of  "felony"            explicitly provided in the  CSA, which is referred to  in the            application note.                  Defendant reads 18  U.S.C.   924(c)(2) as if it  defined            "drug  trafficking  crime" as  any  offense  punishable as  a                                                                    __  _            felony under the  CSA.  But  that is  not how   924(c)(2)  is            ______ _____            written.   The statutory definition plainly  does not require            that an offense, in  order to be a drug trafficking crime, be            subject to a particular magnitude of punishment if prosecuted            under  the  CSA,  as  defendant's  preferred  reading   would            suggest.    Rather, the  definition  requires  only that  the            offense be  a "felony  punishable" thereunder.   Indeed, this            court has expressly  interpreted   924(c)(2)'s definition  of            "drug   trafficking  crime"  as   encompassing  two  separate                                                                 ________            elements:  (1)  that  the  offense be  punishable  under  the            Controlled  Substances Act (or one  of the other two statutes            identified);  and (2) that the  offense be a  felony.  United                                                                   ______            States v. Forbes,  16 F.3d  1294, 1301 (1st  Cir. 1994);  see            ______    ______                                          ___            also  United  States v.  Rodriguez, 26  F.3d  4, 6  (1st Cir.            ____  ______________     _________            1994); Jenkins, 32 F.3d at 14 (following Forbes and Amaral v.                   _______                           ______     ______            INS, 977 F.2d 33, 36 n.3 (1st Cir. 1992)).  We adhere to this            ___            established   interpretation   and  reject   the  defendant's            contrary construction.                  Section  924(c)(2)'s  definition  of  "drug  trafficking            crime"   by  its   terms  includes   "any  felony"   that  is                                                  ___                                         -7-                                          7            criminalized under the  CSA.  The  definition does not  limit            its  application  to offenses  that  would  be classified  as            felonies if  prosecuted under federal law.   Furthermore, the            CSA  itself defines a felony as "any Federal or State offense            classified by applicable  Federal or State law  as a felony."            21 U.S.C.   802(13).  Under the CSA's unambiguous definition,            a  state offense (of  the type within  the scope of  the CSA)            which  is classified  as  a  felony  under  the  law  of  the            convicting state would clearly  qualify as a felony for  that            definition's purposes, even if  the offense could be punished            only as a misdemeanor under federal law.  See Forbes, 16 F.3d                                                      ___ ______            at 1301  n.10; Amaral, 977 F.2d  at 36 n.3.   As Judge Walker                           ______            has cogently observed,                  Section  802(13)'s  explicit  reliance   on  state                  classifications represents  a Congressional choice                  to  include   within  the  category   of  'felony'                  offenses under the Controlled Substances Act . . .                  those  crimes deemed serious  enough by  states to                  warrant    felony     treatment    within    their                  jurisdictions.            Jenkins, 32 F.3d at 14.            _______                  There  is no  reason to suppose that  either Congress or            the Sentencing Commission, in defining "aggravated felony" by            reference   to  18   U.S.C.     924(c)(2),   which  in   turn            specifically  relies on the CSA,  was unaware of  or chose to            dismiss the  definition of "felony" provided  there.  Indeed,            quite the opposite is likely  to be true.  The  CSA's primary            purpose in carving  out a  class of offenses  as felonies  is            _______                                         -8-                                          8            precisely  the same  as Congress'  purpose in  doing so  in 8            U.S.C.    1326(b) and the  Sentencing Commission's purpose in            implementing  that statute  in    2L1.2(b):   to establish  a            basis  for the  imposition  of sentence  enhancements.   See,                                                                     ___            e.g.,   21  U.S.C.    841(b)   (providing  increased  maximum            ____            sentence for defendants with a prior felony conviction).  The            Commission   intended   the   "aggravated  felony"   sentence            enhancement   to  operate  harmoniously   with  the  specific            definition  given to the term  "felony" in the  CSA, the very            statute  by   reference  to  which   "aggravated  felony"  is            ultimately defined.  Cf.  Greenwood Trust Co. v. Commonwealth                                 ___  ___________________    ____________            of  Mass., 971 F.2d 818, 827  (1st Cir. 1992) (when a statute            _________            borrows  language  from  another statute,  the  two  statutes            should be  read consistently), cert.  denied, 113 S.  Ct. 974                                           _____  ______            (1993).                  We hold that a state drug  offense is properly deemed  a            "felony"  within  the meaning  of  18  U.S.C.   924(c)(2)  as            incorporated by  application note  7 to U.S.S.G.    2L1.2, if            the offense is classified  as a felony under  the law of  the            relevant  state, even if the same offense would be punishable            only  as  a misdemeanor  under federal  law.   See  21 U.S.C.                                                           ___              802(13).   In  Rhode  Island,  a  first offense  of  simple            possession of cocaine carries  a maximum term of imprisonment            of three years, see R.I. Gen. Laws   21-28-4.01(C)(1)(a), and                            ___            is therefore a  felony under the  laws of that  jurisdiction.                                         -9-                                          9            See R.I. Gen. Laws   11-1-2 (defining  "felony" as an offense            ___            punishable by a term of imprisonment exceeding one year); cf.                                                                      ___            18 U.S.C.    3559(a) (categorizing as  felonies all  offenses            not   otherwise  classified  by  the  statutes  defining  the            offenses that  are punishable  by prison terms  exceeding one            year).   Restrepo-Aguilar's  1985 cocaine  possession offense            was thus a  felony under  Rhode Island law  and qualifies  as            "any  felony" within  the meaning  of 18  U.S.C.   924(c)(2).            Since that offense is  also punishable under the CSA,  see 21                                                                   ___            U.S.C.   844(a),  it qualifies as a  "drug trafficking crime"            under    924(c)(2) and  hence as  an "aggravated  felony" for            purposes of U.S.S.G.   2L1.2(b)(2).                  Beyond  purely textual  considerations,  this  result is            most consistent  with the approach favored  by the Sentencing            Guidelines.   In measuring  the seriousness of  a defendant's            criminal  record, the Guidelines  operate on the foundational            premise that  a defendant's  history of criminal  activity in            violation of  state law is  to be treated  on a par  with his                          _____            history  of crimes committed in violation of federal law.  To            this end, the commentary  to the Guidelines' central criminal            history  provision  states:  "[p]rior convictions  [that  are            relevant  to  a defendant's  criminal  history  category] may            represent convictions  in  the federal  system,  fifty  state            systems, the District of Columbia, territories, and  foreign,            tribal, and  military courts."    U.S.S.G.   4A1.1,  comment.                                         -10-                                          10            (backg'd).   This principle  that criminal history  cannot be            viewed through a purely federal lens is also reflected in the            commentary to  the "aggravated felony"  enhancement at  issue            here    which  at  bottom is  nothing  more than  a  criminal            history adjustment,  albeit a severe one,  for prior offenses            of  a  particular kind.    U.S.S.G.    2L1.2, comment.  (n.7)            (directing that the enhancement  be applied to prior offenses            of the  relevant  sort "whether  in violation  of federal  or            state law").                  The Sentencing  Commission  fully  recognized  that  the            seriousness of any particular  state offense in a defendant's            record  might  be  viewed differently  across  jurisdictional            lines.   To the objection that the result reached today could            mean  variations in  federal criminal  sentences for  illegal            aliens based  on whether the  50 states classify  offenses as            felonies  or not,  the  response is  that  any such  lack  of            uniformity is  the consequence of a  deliberate policy choice            by  Congress and  the  Commission that  we cannot  disregard.            See, e.g.,  U.S.S.G.   4A1.2(o) (defining "felony offense" by            ___  ____            reference to penalty authorized by federal or state law, such                                                       __            that determination whether offense  is felony could vary from            state to state);   4B1.2, comment. (n.3) (same); cf. Jenkins,                                                             ___ _______            32 F.3d at 14.                  Our result is  also consistent with other provisions  in            the Sentencing Guidelines  that use the  term "felony."   The                                         -11-                                          11            offense of  cocaine possession is punishable  in Rhode Island            by  a term of  imprisonment of up  to three years.   See R.I.                                                                 ___            Gen.  Laws    21-28-4.01(C)(1)(a).    Even  apart  from   the            unambiguous definition  of "felony" provided in  the CSA, see                                                                      ___            21 U.S.C.   802(13), categorizing defendant's 1985 possession            offense  as a felony is fully  consistent with the definition            of that  term that  pervades the  criminal history and  prior            offense  enhancement  provisions  scattered   throughout  the            Guidelines:   any federal  or state offense  punishable under                                       __            applicable law by  a term  of imprisonment of  more than  one            year.   See U.S.S.G.   4A1.2(o); see  also U.S.S.G.    2D1.1,                    ___                      _________            comment.  (n.16(a)), 2K1.3,  comment. (n.4),  2K2.1, comment.            (n.5), 4A1.1, comment. (backg'd),  and 4B1.2, comment. (n.3);            cf.  18  U.S.C.   3559(a).    Nothing  in   2L1.2(b)(2),  the            ___            accompanying commentary, or the related  statutes requires us            to adhere to a different understanding of "felony" here.                  The recent decision of the Board of Immigration  Appeals            in In Re  L-G-, Interim  Decision 3254, 1995  WL 582051  (BIA               ___________            Sept.  27,  1995),  does  not  persuade us  otherwise.    The            decision in  L-G- did  not involve any  consideration of  the                         ____            aggravated felony  sentence enhancement  at issue here.6   At            stake in  L-G- was, instead, the petitioner's  right to apply                      ____                                            ____________________            6.  This  court's decision in Amaral v. INS, 977 F.2d 33 (1st                                          ______    ___            Cir.  1992) and the Second  Circuit's decision in  Jenkins                                                                  _______            both of which, in any event, support our holding here   could            be distinguished on this same ground.                                         -12-                                          12            for  asylum and  request withholding  of deportation  under 8            U.S.C.    1158 & 1253(h).  To be sure, the decision turned on            the  definition of  "aggravated  felony" as  set  forth in  8            U.S.C.   1101(a)(43), which, in relevant part, is the same as            the  definition provided  in application  note 7  to U.S.S.G.              2L1.2,  but the relevant context was  different.  The BIA's            decision rested  to a  significant degree on  policy concerns            relating  to  the  consequences  flowing from  a  deportation            decision  or  a  decision  on  an  application  for  asylum,7            without regard to any of the policies that inform the meaning            of  "aggravated felony" in the context of the statutory prior            offense enhancement or its  implementation in the  Sentencing            Guidelines.8    That the  BIA was  persuaded  by some  of the            policies undergirding deportation  and asylum  determinations            to   interpret  "aggravated   felony"  as   excluding  state-            classified  felonies  punishable only  as  misdemeanors under            federal law does not convince  us that Congress, in  creating                                            ____________________            7.  See,  e.g., L-G-,  slip op.  at 20 (stating  concern that                ___   ____  ____            alien found to have been convicted of aggravated felony might            be  "barred  by  [the  immigration statutes]  from  receiving            withholding of deportation, even if he faced imminent harm or            death due to persecution in his native country").            8.  One  of the reasons given by the BIA for disregarding the            definition  of "felony" provided in the CSA is that "the term            'felony' is primarily used in 21 U.S.C.   802(13) to  trigger            statutory sentence  enhancement for repeat  offenders," L-G-,                                                                    ____            slip  op. at 16, rather  than "to describe  offenses that are            punishable under its provisions."  This distinction weighs in            favor of, not  against, the  use of the  CSA's definition  in            applying  the  sentence  enhancement  provision  of  U.S.S.G.              2L1.2(b)(2).                                         -13-                                          13            the aggravated felony sentence enhancement, or the Sentencing            Commission,  in implementing it,  intended the  same result.9            We decline to adopt the BIA's reasoning here.10                                         III                  Because  the  cocaine  possession   offense  for   which            defendant Restrepo-Aguilar  was convicted in  1985 under  the            laws  of Rhode Island counts as "any felony" in the requisite            sense and  is criminalized by the  Controlled Substances Act,            that  offense is  a "felony  punishable under  the Controlled            Substances Act" and thus falls within the definition of "drug            trafficking  crime" set  forth in  18 U.S.C.    924(c)(2), as            adopted  in U.S.S.G.   2L1.2,  comment. (n.7).   Accordingly,            that offense qualifies as an "aggravated felony" for purposes            of   2L1.2(b)(2), and  the district court  correctly enhanced                                            ____________________            9.  Moreover, the BIA's analysis suffers from one of the same            difficulties that lead us  to reject the defendant's argument            here.  The BIA reads 18 U.S.C.   924(c)(2) as if that statute            required  an offense to be  punishable as a  felony under the                                                   __ _  ______ _____            Controlled Substances Act in order to be a "drug  trafficking            crime."   Indeed, the BIA  at several places  in its decision            paraphrases   924(c)(2)'s definition in just that way.  L-G-,                                                                    ____            slip  op. at  7, 9, 11,  13, 22-23.   This  alteration of the            statute's  actual syntax  is more  than merely  cosmetic, and            indeed is substantively inconsistent with the construction of              924(c)(2) given in Rodriguez, 26 F.3d at 6; Forbes, 16 F.3d                                 _________                ______            at 1301; and Amaral, 977 F.2d at 35.                         ______            10.  Because we are not  bound by the BIA's L-G-  decision in                                                        ____            any sense,  we need not  decide whether the  term "aggravated            felony" could,  in principle, bear a different interpretation            for purposes of sentence enhancement under 8 U.S.C.   1326(b)            and  the  Guidelines,  than  for purposes  of  the  statutory            provisions concerning asylum and withholding  of deportation,            8 U.S.C.    1158 & 1253(h).                                         -14-                                          14            defendant's base offense level by 16  levels pursuant to that            guideline.11                  Affirmed.                  _________                                            ____________________            11.  Of course, if  we are wrong, the Commission  can correct            us by amending   2L1.2(b)(2) or the accompanying commentary.                                         -15-                                          15
