
USCA1 Opinion

	




        June 27, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2148                                     UNITED STATES,                                      Appellee,                                          v.                                JOSE CASTILLO-MORONTA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            David A. Cooper and Cooper & Sanchez on brief for appellant.            _______________     ________________            Edwin J. Gale, United States Attorney,  Margaret E. Curran and Ira            _____________                           __________________     ___        Belkin, Assistant United States Attorneys, on brief for appellee.        ______                                 ____________________                                 ____________________                 Per Curiam.   Jose Castillo-Moronta pled  guilty under 8                 __________            U.S.C.     1326(b)(2) to  unlawful  reentry  into the  United            States following his  deportation.  He now  advances a single            challenge to his  sentence, arguing that  the court erred  in            imposing a  16-level enhancement  to his offense  level under            U.S.S.G.     2L1.2(b)(2)  on  the  ground  that  he had  been            deported after  conviction for  an "aggravated felony."   His            sole argument is that  the underlying offense triggering this            enhancement--a  Rhode  Island  conviction  for  manufacturing            marijuana--does  not constitute  an  aggravated felony.    We            disagree and therefore summarily affirm.  See Loc. R. 27.1.                                                      ___                 Echoing  the   definition  contained   in  8  U.S.C.                1101(a)(43), the  commentary to    2L1.2  defines "aggravated            felony" 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) ...."            U.S.S.G.   2L1.2, comment. (n.7).  The commentary also states            that the term encompasses such offenses "whether in violation            of federal or state  law."  Id.   The term "drug  trafficking                                        ___            crime,"  in  turn, is  defined in  18  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.)."  Accordingly, for  a drug offense to fall  within the                                         -2-            scope  of     924(c)(2) and  thus  within  the definition  of            aggravated  felony, it  must meet  two criteria:  "first, the            offense  must   be  punishable  under  one   of  these  three            enumerated  statutes;  and  second,  the offense  must  be  a            felony."   United States v.  Forbes, 16 F.3d  1294, 1301 (1st                       _____________     ______            Cir. 1994); accord, e.g.,  Amaral v. I.N.S., 977 F.2d  33, 35                        ______  ____   ______    ______            (1st Cir. 1992).                  Both    of   these   criteria    are   satisfied   here.            Manufacturing a controlled substance, including marijuana, is            specifically proscribed by 21  U.S.C.   841(a)(1).   And such            an offense constitutes a felony.   As we explained in both of            the decisions just cited, a felony is defined in  21 U.S.C.              802(13)  as  "any  Federal  or State  offense  classified  by            applicable  Federal or  State law  as a  felony."1   Under 18            U.S.C.     3559(a), an  offense is  a  felony if  the maximum            authorized  term of imprisonment exceeds  one year.2  Both 21            U.S.C.     841  and  R.I.  Gen.  Laws     21-28-4.01(A)(2)(a)            prescribe a maximum prison term in excess of one year for the            offense of manufacturing a controlled substance.                                             ____________________            1.  See also United States  v. Aymelek, 926 F.2d 64,  71 (1st                ________ _____________     _______            Cir.  1991) ("Although state  law must  still be  examined to            ascertain  the   elements  of   a   predicate  offense,   the            conviction's   ultimate    classification,   for   guidelines            purposes, is determined by federal law.") (applying   2L1.2).            2.  Rhode  Island law is to  the same effect.   See R.I. Gen.                                                            ___            Laws   11-1-2.                                           -3-                 Defendant  does  not  take  issue with  this  reasoning.            Rather,  he contends  that  a "mechanical  application" of               2L1.2  here  results  in  a  sentence  that  exaggerates  the            seriousness  of his  offense.  He  emphasizes that,  far from            being involved in  the manufacture  or sale of  drugs on  any            large-scale basis,  he was found  in possession  of a  single            marijuana   plant   (along  with   a   half-smoked  marijuana            cigarette) which he claims was intended for  his personal use            only.   Yet this argument has no bearing on the applicability            of    2L1.2's 16-level  enhancement; rather, it  concerns the            propriety  of  a possible  downward  departure.   See,  e.g.,                                                              ___   ____            United  States v.  Hinds, 803  F. Supp.  675 (W.D.N.Y.  1992)            ______________     _____            (departing  downward  under  analogous circumstances),  aff'd                                                                    _____            mem., 992 F.2d 321 (2d Cir. 1993).  Indeed, a good portion of            ____            the sentencing hearing was devoted to the question of whether            such  a   departure  was  warranted.     The  district  court            ultimately  decided,   in  its  discretion,   not  to  depart            downward,   relying   on   other  factors   indicating   that            defendant's  overall conduct  was less  benign than  it might            first appear.3   Defendant here has advanced no  challenge to                                            ____________________            3.  For  example,   defendant  was  convicted   in  1988   of            possession of heroin.   In 1991, he was  convicted of using a            false social  security number and making  false statements to            purchase eleven  pistols and  a shotgun.    Defendant was  on            supervised  release from  the firearms  offenses when  he was            arrested on the marijuana  charge.  Among the items  found in            his apartment at that  time were over $28,000 in  cash hidden            behind  a refrigerator panel  and 27 boxes  of empty glassine            packets, which  according to  the police  report are used  to                                         -4-            this determination, and we  of course would lack jurisdiction            to entertain  it had he done so.  See, e.g., United States v.                                              ___  ____  _____________            Gifford, 17 F.3d 462, 473 (1st Cir. 1994).            _______                 Affirmed.                 _________                                            ____________________            package heroin.   And in  1993, following his  return to  the            United States  (which he  explained was  for  the purpose  of            visiting  his three  daughters), defendant  was  arrested for            attempting to  pass  counterfeit currency;  he thereafter  is            said  to have provided police officials with a false name and            date  of birth in  an attempt to  obstruct the investigation.            These charges remained pending at the time of sentencing.                                          -5-
