
USCA1 Opinion

	




          July 15, 1994     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  93-2169                                    UNITED STATES,                                      Appellee,                                          v.                                     WAYNE STRAW,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The opinion of this Court issued on July 11, 1994 is amended          as follows:               Page 4, line 21 change the number "15" to "16"          July 12, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2169                                                UNITED STATES,                                      Appellee,                                          v.                                     WAYNE STRAW,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               William A. Hahn and Hahn & Matkov on brief for appellant.               _______________     _____________               Donald  K.  Stern, United  States  Attorney,  and Robert  E.               _________________                                 __________          Richardson,  Assistant  United  States  Attorney,  on  brief  for          __________          appellee.                                  __________________                                  __________________                      Per Curiam.  Wayne Straw appeals his conviction and                      __________            sentence  for illegal  reentry into  the United  States after            deportation, 8 U.S.C.    1326.  We  summarily affirm pursuant            to Loc. R. 27.1.                                       Background                                      __________                 On January  11, 1990, the United  States Immigration and            Naturalization Service deported Straw  from the United States            to Jamaica.  Prior  to his deportation, Straw had  been twice            convicted in  Dorchester  District Court  for  possession  of            marijuana  (once in 1981 and again in 1982).  Straw was found            in  the United  States in  February, 1993.   A  federal grand            jury, in  a one-count  indictment, charged him  with unlawful            reentry after deportation in violation of 8 U.S.C.    1326(a)            and (b)(2).   Straw pleaded  guilty, preserving his  right to            appeal his sentence.                 Adopting the factual findings and recommended sentencing            guideline  application  contained   in  Straw's   presentence            report, the  district court  increased  Straw's base  offense            level by 16, pursuant  to U.S.S.G.   2L1.2, on account of his            1981 and 1982 convictions for "aggravated felonies."  A total            offense  level of 21 and  a criminal history  category of III            yielded an imprisonment range of 46  to 57 months.  The court            sentenced Straw to 46 months in prison.                                                       -2-                                      Discussion                                      __________                 Straw argues  on appeal that the  sentencing court erred            in increasing his  base offense level pursuant  to U.S.S.G.              2L1.2, which provides, in relevant part, as follows:                 (2) If  the defendant previously was deported after                 a conviction for an aggravated felony,  increase by                 16 levels.            The statutory authority for this guideline provision is found            in 8 U.S.C.    1326(b), which imposes a maximum penalty of 15            years for the crime  of illegal reentry following deportation            "subsequent to  a conviction for commission  of an aggravated            felony."  8 U.S.C.   1326(b)(2).   The Anti-Drug Abuse Act of            1988 (the "ADAA") added subsection (b) to   1326.                  On appeal,  Straw contends, as he did  at his sentencing            hearing, that the use of his prior convictions to enhance his            sentence under   1326(b)(2) violates the ex post facto clause            of the Constitution.   Specifically, Straw argues that at the            time  of  his  convictions  for  marijuana  possession, those            offenses did not constitute "aggravated felonies."  Not until            1988, when Congress  enacted the ADAA,  did the law  classify            possession of marijuana as  an "aggravated felony," enhancing            the penalty for illegal reentry.  See 8 U.S.C.    1101(a)(43)                                              ___            and  1326(b)(2).   Therefore, Straw  reasons, to  enhance his            sentence based upon convictions that pre-dated  the amendment            adding the  enhanced penalty  provision would violate  the ex            post  facto  clause's prohibition  against  the retrospective                                         -3-            application   of  laws   that  materially   disadvantage  the            defendant. See U.S. Const. art. I,   9, cl. 3.                        ___                   We recently  rejected an identical  argument in United                                                                   ______            States  v.  Forbes, 16  F.3d  1294 (1st  Cir.  1994).   As we            ______      ______            reasoned  there,  the  enhancement  provision  increases  the            punishment for  the crime of  unlawful reentry  and does  not            affect the punishment that Straw received for the offenses he            committed before the effective  date of the ADAA. See  id. at                                                              ___  ___            1302.  "As the Gryger  [v. Burke, 334 U.S. 728 (1948)]  Court                           ______      _____            observed, the fact that  prior convictions that factored into            a defendant's increased sentence preceded the enactment of an            enhancement  provision does  not  render  the  Act  invalidly            retroactive." Id.  Therefore, we hold that Straw's conviction                          ___            and sentence do not violate the ex post facto clause.                 To  the extent  that  appellant argues,  as a  matter of            statutory  construction,  that  Congress  did  not  intend               1326(b)(2)  to apply  retroactively  to a  defendant who  was            convicted  and deported  prior to  enactment of the  ADDA, we            have  also recently  rejected precisely  that argument.   See                                                                      ___            United  States v. Troncoso, No.  93-2130, slip op.  at 8 (1st            ______________    ________            Cir. May 18, 1994); see also United States v. Forbes, 16 F.3d                                ___ ____ _____________    ______            1294  (upholding  application   of     1326(b)(2)  based   on            aggravated   felony  convictions   that  occurred   prior  to            effective date of ADAA).                                         -4-                 Straw's  final argument  is  that the  "rule of  lenity"            should bar  the application  of the enhancement  provision in            this  case.    The  rule   of  lenity  requires,  in  certain            circumstances, that ambiguity in criminal statutes, including            sentencing provisions,  be resolved in defendant's favor. See                                                                      ___            United States  v. Granderson, 114  S. Ct. 1259,  1267 (1994);            _____________     __________            United States v.  Bass, 404 U.S. 336, 347  (1971).  Straw has            _____________     ____            failed to convince us, however, that there is ambiguity about            whether    1326(b) was intended  to apply to  a defendant who            was convicted and  deported prior to  enactment of the  ADDA,            but illegally reentered the country thereafter.   In   United                                                                   ______            States v. Troncoso, No.  93-2130, slip op. at 8,  we affirmed            ______    ________            the district court's application of   1326(b)(2) to enhance a            sentence  for  illegal  reentry  by an  alien  convicted  and            deported prior to the ADAA's enactment, based upon the "plain            meaning  of the  provision."   We noted  there that  "the Act            provided  that the  amendment  adding section  1326(b) 'shall            apply to any alien who enters, attempts to enter, or is found            in,  the United States on or after  the date of the enactment            of this  Act.'" Id. at 6.  The rule of lenity "cannot dictate                            ___            an implausible interpretation of  a statute . . .  ."  Taylor                                                                   ______            v. United States,   495 U.S. 575, 596 (1990).   Therefore, we               _____________            decline Straw's invitation to apply the rule of lenity here.                 For  the  foregoing   reasons,  Straw's  conviction  and            sentence are summarily affirmed pursuant to Loc. R. 27.1.                                         -5-
