
USCA1 Opinion

	




          May 1, 1995           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1057                                    UNITED STATES,                                      Appellee,                                          v.                               FRANCISCO JAVIER MEJIAS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Olga M. Shepard on brief for appellant.            _______________            Guillermo Gil, United States Attorney, and Jeanette Mercado  Rios,            _____________                              ______________________        Assistant  United  States  Attorney,  on  Motion   Requesting  Summary        Disposition for appellee.                                 ____________________                                 ____________________                      Per Curiam.    Francisco Javier  Mejias appeals his                      __________            conviction and  sentence for illegal reentry  into the United            States after  deportation subsequent to  an aggravated felony            conviction, 8 U.S.C.   1326(b)(2).  We affirm.                                    I. Background                                       __________                      According  to  the  Pre-Sentence   Report  ("PSR"),            Mejias, a citizen  of the Dominican Republic, was arrested in            Rhode  Island in August  1992 and pleaded  nolo contendere in            state court  to the  charge of  conspiring  to violate  Rhode            Island's Uniform Controlled Substances  Act. R.I. Gen. Laws              21-28-1.01, et seg. (1994).   He was sentenced to three years                        __ ___            in prison; execution  of the sentence was  suspended.  Mejias            was  deported  from New  York  to the  Dominican  Republic in            February 1993.   In May 1993,  he arrived in Puerto  Rico and            was arrested  while attempting  to reenter the  United States            without  having received permission  of the Attorney General.            Counsel was appointed to represent Mejias.                      At  a  change of  plea  hearing  before the  United            States District Court  for the  District of  Puerto Rico,  on            July 6, 1993, Mejias pled  guilty to the single count of  his            indictment,  charging  him  with  illegal  reentry  following            deportation subsequent to conviction for the commission of an            aggravated  felony, in  violation of  8 U.S.C.    1326(b)(2).            The PSR calculated a total offense level of 21. Starting with            a  base offense  level  of 8,  the PSR  added  16 levels  for            Mejias' prior conviction for an aggravated felony pursuant to            the  United  States  Sentencing  Guidelines   ("U.S.S.G.")               2L1.2(b)(2).    Three  levels  were  subtracted  for  Mejias'            acceptance of responsibility.   Based upon a criminal history            category of  II and  a total  offense level  of  21, the  PSR            arrived at a guideline  sentencing range of 41 to  51 months.            There were no objections to the PSR.                      Prior  to  sentencing,  Mejias  filed a  motion  to            dismiss the indictment.  He argued that his prosecution under            8  U.S.C.    1326(b)(2) violated  the Constitution's  ex post                                                                  __ ____            facto clause.   He asserted that he had been  informed at the            _____            time of  his deportation  that the  maximum penalty  he could            receive for  illegal reentry  was  two years.   The  district            court denied the motion and  sentenced Mejias on December 13,            1994, to a  prison term of  41 months.   Mejias appealed  and            counsel was appointed to represent him on appeal.                      Appellate counsel filed a brief in accordance  with            Anders  v. California,  386 U.S.  738 (1967), in  July, 1994.            ______     __________            The government moved for summary dismissal of the appeal.  In            an  order  dated October  14,  1994,  this  court denied  the            government's  motion  to  dismiss  and  counsel's  motion  to            withdraw, without prejudice to re-filing of the motions after            counsel obtained and  reviewed a transcript of  the change of            plea  hearing.    Counsel  has  obtained  and  reviewed  that            transcript and,  finding  no  error in  the  change  of  plea                                         -3-            proceedings, has filed a supplemental Anders  brief and a new                                                  ______            motion  to withdraw.  The  government has filed  a new motion            for summary dismissal.                                    II. Discussion                                        __________                      The Anders brief identifies two grounds for appeal:                          ______            1) the ex  post facto  argument raised by  Mejias' motion  to                   __  ____ _____            dismiss his indictment  and 2) the argument that the district            court erred in  adding 16  levels to the  base offense  level            because  Mejias' prior  conviction  was not   an  "aggravated            felony,"  within the meaning of U.S.S.G.   2L1.2(b)(2).   For            the reasons that  follow, we agree with Mejias'  counsel that            both arguments are frivolous.                      A. Violation of Ex Post Facto Clause.                         _________________________________                      The Constitution's  ex post  facto clause  bars the                                          __ ____  _____            retrospective   application   of    laws   that    materially            disadvantage  a defendant.     Section  1326(b)(2) went  into            effect in  November,  1988.   Mejias  was deported  in  1993.            Therefore, the  application of    1326 (b)(2) to  his conduct            was  not "retrospective" and the ex post facto clause was not                                             __ ____ _____            violated.   See United States  v. Troncoso, 23  F.3d 612, 615                        ___ _____________     ________            (1st  Cir. 1994),  (rejecting  ex post  facto argument  where                                           __ ____  _____            appellant   "failed   to   demonstrate   that  the   law   is            'retrospective,  that is  it must  apply to  events occurring            before its enactment.'"), cert. denied, ___ U.S ___, 115 S.Ct                                      ____  ______            912 (1995).                                         -4-                      Nor is there any support in  the record for Mejias'            argument that  the court  is estopped from  sentencing Mejias            beyond two years based upon representations by the INS at the            time of  his deportation.  The record  includes a copy of the            INS Form  I-294 that was given  to Mejias at the  time of his            deportation  and signed  by him.   The  form states  that the            maximum sentence is  fifteen years for illegal re-entry by an            alien whose  deportation was subsequent to  conviction for an            aggravated felony.   Mejias does not contest that he received            the I-294  Form signed by  him.  Therefore,  as there was  no            government  misrepresentation, Mejias has failed to satisfy a            threshold element of  the estoppel doctrine.   See  Troncoso,                                                           ___  ________            23 F.3d  at 615.  Moreover,  even if the  INS had misinformed            Mejias of the maximum penalty  for illegal reentry, the court            would  not be estopped from  sentencing him in  excess of two            years  for  his  purposeful  felonious  conduct in  illegally            reentering  the country.  See   id at  616; United  States v.                                      ___   __          ______________            Smith,  14  F.3d  662,  666  (1st  Cir.  1994)  (government's            _____            misrepresentation  regarding maximum sentence did not justify            downward departure).                      B. Aggravated Felony Conviction                         ____________________________                      In view of  the complete lack  of factual or  legal            support for Mejias' ex post facto argument, appellate counsel                                __ ____ _____            identified   the  following   alternative   argument:     the            sentencing court erred in  applying a 16-level enhancement to                                         -5-            his offense  level under U.S.S.G.    2L1.2(b)(2), because the            state  conviction  that  triggered  the  enhancement  is  not            specifically classified in the  state record as an aggravated            felony.  This issue was not raised before the district court.                      The  "Judgment of  Conviction and  Commitment" from            the Rhode  Island Superior  Court indicates only  that Mejias            was  convicted  of  conspiracy   to  violate  the  Controlled            Substances  Act.  No specific section of the Rhode Island Act            is cited.     From  the  PSR,  however, it  is  evident  that            possession of cocaine with intent to  distribute was at least            one aspect  of  the  charge  to  which  Mejias  pleaded  nolo            contendere.                      This  court  recently  outlined  the  criteria  for            classifying a prior conviction  as an "aggravated felony" for            purposes of U.S.S.G.   2L1.2, as follows:                           "Aggravated  felony"  is defined  in                      paragraph 7 of the Application Notes to                        2L1.2 to include "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) .  . ." and applies to offenses                      in violation of federal or state law.                           A   "drug   trafficking  crime"   is                      defined  in U.S.C.   924(c)(2) to include                      "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.)."    For  a  drug  offense  to come                      ___                      within this statute and, in turn, to meet                      the definition of "aggravated felony," it                      must  meet  two  criteria:    first,  the                                         -6-                      offense must be  punishable under one  of                      these  three   enumerated  statutes;  and                      second, the  offense  must be  a  felony.                      Amaral  v.  I.N.S., 977  F.2d  33,35 (1st                      ______      ______                      Cir., 1992).            United  States v. Forbes, 16 F.3d 1294, 1301 (1st Cir. 1994).            ______________    ______                      Mejias' state conviction meets both criteria.  Even            simple possession  of drugs  is punishable under  the federal            Controlled Substance Act. See  21 U.S.C.   844(a).   A felony                                      ___            is defined under 21 U.S.C.   802(13) as "any Federal or State            offense classified  by applicable Federal  or State Law  as a            felony."   Under  Rhode Law,  an offense is  a felony  if the            maximum authorized  term of  imprisonment  exceeds one  year.            See R.I.  Gen. Laws    11-1-2 (1994).   The  maximum term  of            ___            imprisonment authorized for conspiracy to possess with intent            to deliver cocaine  exceeds one year under  Rhode Island law.            See R.I. Gen. Laws    21-28-4.01(A)(2)(a) and 21-28-4.08             ___            (1994).  Therefore, Mejias' conviction is a felony punishable            by one of the  enumerated statutes in 18 U.S.C.    924(c)(2),            and it  qualifies as  an aggravated  felony  for purposes  of            U.S.S.G.   2L1.2.                      We  conclude  that  counsel,  having  obtained  and            reviewed the transcript from the  change of plea hearing, has            fully complied with her obligation under Anders to review the                                                     ______            entire record for any arguable claim.  In accordance with our            obligation  under  Anders, we  too  have  fully examined  the                               ______            record.  We conclude that the appeal is wholly frivolous and,                                         -7-            accordingly,   we   grant  counsel's   motion   to  withdraw.            Appellant's conviction  and sentence are affirmed.   See Loc.                                                     ________    ___            R. 27.1.                                         -8-
