
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1590                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                CARLOS JULIO RODRIGUEZ                                  aka Jose Ramirez,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                          _____________                                 ____________________            Eileen M. Donoghue, by Appointment of the Court, for appellant.            __________________            Robert E. Richardson, Assistant United States Attorney, with  whom            ____________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                    June 17, 1994                                 ____________________               COFFIN,  Senior  Circuit  Judge.    Carlos  Julio  Rodriguez                        ______________________          appeals his sentence  for illegal reentry into  the United States          after deportation, 8 U.S.C.   1326.  We affirm.                                I.  Factual Background                                    __________________               In April 1991, Rodriguez,  a Colombian citizen, was deported          from  Boston to  Colombia.   The  following September,  Rodriguez          reentered the United  States illegally.   On  December 19,  1991,          agents  from the  Immigration and  Naturalization Service  (INS),          acting  on  a tip,  found  and arrested  Rodriguez  at  a bar  in          Chelsea,  Massachusetts.    A  federal  grand  jury  subsequently          returned  a  one  count  indictment  charging  Rodriguez  with  a          violation of 8 U.S.C.    1326(a) and (b)(2).1                 On November 4, 1992, Rodriguez pled guilty to a violation of          8  U.S.C.     1326(a).2    Rodriguez'  presentence  report  (PSR)          computed his total offense level at 21: 8 points were assigned as          the base  offense level  under 8  U.S.C.    1326, 16  points were          added for his previous conviction for an aggravated felony, and 3                                        ____________________               1This statute provides, in pertinent part, that:               (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, such  alien shall  be               fined under such  Title, imprisoned not more  than 15 years,               or both.               2At  his  plea  hearing,  the court  accepted  the  parties'          stipulation to  consider Section  (b)(2) as a  sentencing factor,          and not as  an element of  the offense.   We have since  affirmed          this view.  See United States  v. Forbes, 16 F.3d 1294, 1300 (1st                      ___ _____________     ______          Cir. 1994) (holding that Section (b)(2) is a sentence enhancement          factor).                                         -2-          points  were  subtracted  for acceptance  of  responsibility  and          timely notifying  authorities of  his intention to  plead guilty.          See U.S.S.G.     2L1.2(a),  (b)(2); 3E1.1(b)(2).   Taken together          ___          with  a  criminal  history  category  of  III,  this  calculation          resulted  in  a  recommended  sentencing range  of  46-57  months          imprisonment and 24-36 months supervised release.                 The district  court accepted the PSR recommendation, finding          that  Rodriguez' two  convictions for  possession with  intent to          distribute an illegal drug, in violation of Mass. Gen. L. ch. 94C            32A, were "aggravated felonies" within the meaning of              1326(b)(2).   The  court also  ruled  that Rodriguez'  offense          occurred when he was found in the United States in December 1991,          and, therefore, that application  of the November 1991 amendments          to  the Sentencing Guidelines did  not violate the  ex post facto                                                              __ ____ _____          clause  of the  Constitution.   Accordingly, the  court sentenced          Rodriguez to 48  months imprisonment,  followed by  24 months  of          supervised release.  This appeal followed.               Rodriguez contends  that his Massachusetts'  convictions are          not "aggravated" felonies within the meaning of federal law,  and          that  the district court therefore erred by using them to enhance          his  base offense  level by  16 points.   He also  reiterates his          claim that the application of the November 1991 Guidelines to his          conviction  violates the ex post facto clause, and that he should                                   __ ____ _____          have been sentenced under  the Guidelines in effect in  September          1991, the date of his reentry into the United States.                                         -3-                         II.  Aggravated Felony Determination                              _______________________________               Section 1326(b)(2) provides an enhanced penalty for deported          aliens  who  illegally   reenter  the  United  States   following          conviction  for an aggravated felony.  Our cases establish that a          drug  offense  is  an  aggravated felony  within  the  meaning of          Section 1326 and the applicable Sentencing Guidelines, U.S.S.G.            2L1.2(b)(2), if it is a "drug trafficking crime" as defined in 18          U.S.C.   924(c)(2).   See United States v. Forbes,  16 F.3d 1294,                                ___ _____________    ______          1301 (1st Cir. 1994); Amaral v. I.N.S., 977 F.2d 33, 35 (1st Cir.                                ______    ______          1992).  Under  that section, a drug felony is a "drug trafficking          crime" if it is  punishable under any one of three  statutes: (1)          the Controlled Substances  Act, 21 U.S.C.   801  et seq.; (2) the          Controlled Substances Import and  Export Act, 21 U.S.C.    951 et          seq.;  or  (3) the  Maritime Drug  Law  Enforcement Act,  46 App.          U.S.C.   1901 et seq.               Rodriguez  argues   that  his  state  convictions   are  not          aggravated felonies, and therefore  not subject to enhancement as          such,  because  they are  not  for  "trafficking" crimes.    This          argument is meritless.  Rodriguez' Massachusetts convictions  are          trafficking crimes for purposes of  Section 1326 because they are          punishable  under the Controlled Substances Act.  See 21 U.S.C.                                                              ___          844(a) (punishing simple possession  of controlled substances).3                                         ____________________               3Rodriguez  also  contends  that  his  convictions  are  not          trafficking crimes  under state  law.   This argument  misses the          mark.  We have  held that federal, not state,  definitions govern          under the Guidelines.  United States v. Unger, 915 F.2d 759, 762-                                 _____________    _____          63 (1st Cir. 1990);  United States v. Aymelek, 926  F.2d 64, 71-2                               _____________    _______          (1st Cir. 1991).                                           -4-          See  Forbes, 16  F.3d  1294, 1301  (state possession  convictions          ___  ______          which  would  be felonies  under 21  U.S.C.    844(a)  treated as          aggravated felonies under U.S.S.G.   2L1.2(b)(2)).               Rodriguez  argues that  this  conclusion  unfairly  converts          virtually  all predicate  drug  crimes into  aggravated felonies,          thus  rendering meaningless,  for drug offenses,  the distinction          under Section 1326 and the applicable Guidelines between felonies          and  aggravated felonies.   We recognize that  this definition of          "aggravated felony" may be  rather harsh for drug offenders.   We          are not at liberty, however, to rewrite the statutory scheme.                 We therefore conclude that the district court properly added          16  points to  Rodriguez'  base offense  level  in computing  his          sentence under the Guidelines.                               III.  Ex Post Facto Claim                                    ___________________               Rodriguez illegally reentered the United States on September          5,  1991.    At that  time,  the  relevant Sentencing  Guidelines          provided for a base offense level of 8, a  4-level increase "[i]f          the   defendant  previously  was   deported  after  sustaining  a          conviction for a felony,"  U.S.S.G.   2L1.2 (Nov. 1990),  and, if          the conviction was for an aggravated felony, "an upward departure          may be warranted."  Id., comment (n.3).                              ___               Rodriguez was not found in the United States, however, until          December 19, 1991.  Between the time of his entry and the time of          his arrest, the Guidelines  were amended to increase the  penalty          for a  conviction under  Section 1326 where  deportation followed          conviction  for an  aggravated  felony.   U.S.S.G.    2L1.2(b)(2)                                         -5-          (Nov.  1991).   These  amendments,  effective  November 1,  1991,          converted  the  discretionary  choice  whether  to  increase  the          penalty  for  this  class  of  defendants  to  a requirement,  by          instructing  the court  to add  16 points  to the  calculation of          their total offense level.  Id.                                      ___               Rodriguez   argues  that  the  district  court  should  have          sentenced  him  under the  Guidelines in  effect on  September 5,          1991, the date he entered the United States, because that is when          he violated  Section 1326.   The district court's  application of          the November 1991 Guidelines violates the ex post facto clause of                                                    __ ____ _____          the Constitution, he claims,  because the amendments increase the          sentence applicable at the time he committed the crime.               The government counters that 8 U.S.C.   1326(a)(2) describes          three  separate occasions on which a deported alien can commit an          offense  under the statute: when  he or she  (1) illegally enters          the United States;  (2) attempts  illegally to  enter the  United          States;  or (3) is  found in the  United States.   They point out          that the indictment explicitly  charged Rodriguez, and he pleaded          guilty to, having been found in the United States on December 19,                                 _____          1991, over a month and a half after the November 1991 Guidelines'          amendments.4   Application  of  these  amendments  to  Rodriguez'                                        ____________________               4Alternatively,   the  government   urges   this  court   to          characterize  Section 1326(a)  as  a continuing  offense.   Other          courts,  in   discussing  the  application  of   the  statute  of          limitations, have come to differing conclusions regarding whether          this  statute describes  a  continuing offense.   Compare,  e.g.,                                                            _______   ____          United  States v. DiSantillo, 615 F.2d 128, 132-37 (3d Cir. 1980)          ______________    __________          (crime  of  illegal  entry  through  recognized  Immigration  and          Naturalization port  of entry  after being arrested  and deported          not a continuing  offense, so  as to toll  applicable statute  of                                         -6-          offense,  they contend,  therefore does not  violate the  ex post                                                                    __ ____          facto clause.          _____               Barring any  ex post facto concerns,  a defendant ordinarily                            __ ____ _____          should  be sentenced according to the Guidelines in effect at the          time of sentencing.   18  U.S.C.   3553(a)(4);  United States  v.                                                          _____________          Harotunian,  920 F.2d  1040, 1041-42  (1st Cir. 1990).   However,          __________          when a guideline amendment  increases the punishment imposed, the          ex  post facto  clause of  the Constitution  prevents retroactive          __  ____ _____          application of the  guideline to offenses committed  prior to the          effective date of the amendment.   In such a case, the  guideline          in effect at the time the crime was committed must be used.   See                                                                        ___          U.S. Const. art. I,   9,  cl.3; United States v. Molina, 952 F.2d                                          _____________    ______          14, 522-23 (D.C.  Cir. 1992).  Determining whether application of          the  November 1991 Guidelines  violated the ex  post facto clause                                                      __  ____ _____          requires us  to decide when Rodriguez committed the offense: when          he crossed the  border on September 1991, or when  he was caught,          on December 19, 1991?               As the Supreme Court has  stated in interpreting a different          section of  the Immigration and Nationality Act  of 1952, "`[t]he          cardinal principle of  statutory construction is to  save and not          to destroy.'   It is  our duty `to  give effect, if  possible, to          every clause and word of a statute.'"  United States v. Menasche,                                                 _____________    ________                                        ____________________          limitations for as  long as  alien remains in  the country)  with                                                                       ____          United  States v.  Bruno, 328  F. Supp.  815, 825  (D.  Mo. 1975)          ______________     _____          (criminal  conduct of  being  found in  the  United States  after          having been excluded and  deported continues so long as  alien is          present in the United States).                 Because  we conclude  that  Section 1326(a)  describes three          separate offenses, we need not reach this issue.                                           -7-          348 U.S.  528, 538-39 (1955) (citations omitted).   Applying this          principle, we think it plain  that "enters," "attempts to enter,"          and "is at any  time found in" describe three  distinct occasions          on which a deported  alien can violate Section 1326.   The phrase          "found  in" otherwise would  be surplusage,  because it  would be          redundant with "enters."  Accord  United States v. Whittaker, 999                                    ______  _____________    _________          F.2d 38, 41-43  (2d Cir.  1993); United States  v. Gonzales,  988                                           _____________     ________          F.2d 16, 18  (5th Cir. 1993); United States  v. Alvarez-Quintero,                                        _____________     ________________          788 F. Supp. 132, 133-34 (D.R.I. 1992).                 This construction is consistent with the legislative history          discussed in  United States v.  DiSantillo, 615 F.2d  128, 134-35                        _____________     __________          (3d  Cir.  1980).   In  DiSantillo,  the  court  noted that  when                                  __________          Congress  reenacted  the statute  in  1952,  it  added  the  term          "found," but did not  remove "enters."  Id. at 135.  In so doing,                                                  ___          the court concluded, Congress  must have intended to broaden  the          statute to include the  crime committed when an alien  enters the          United States  surreptitiously, of  which the INS  would have  no          official  record, as  well as  the crimes  committed by  entry or          attempted entry through regular immigration procedures.  There is          no  other apparent reason for  retaining the word  "enters."  Id.                                                                        ___          The  court was persuaded that the amendment was aimed at ensuring          that aliens  who  were  not apprehended  as  they  reentered  the          country  nevertheless  could  be prosecuted  for  unlawful  entry          whenever  they were  found.   See also  United States  v. Canals-                                        ___ ____  _____________     _______          Jimenez,  943  F.2d 1284,  1286-89  (11th  Cir. 1991)  (following          _______          DiSantillo in concluding  that an alien who had  sought admission          __________                                         -8-          through  recognized  immigration  port  of entry,  and  thus  was          physically "in"  the country, could  not be prosecuted  under the          "found in" clause, because  that clause was intended to  apply to          aliens who have entered surreptitiously).               In this  case,  regardless of  when  he entered  the  United          States, Rodriguez violated the  statute when he was "found"  here          on December  19, 1991, and he  pled guilty to the  crime of being          "found  in"  the  United  States  at  that  time.    Accordingly,          application  of the  November  1991 Guidelines  in computing  his          offense level does not violate the ex post facto clause.                                              __ ____ _____          The decision of the district court is therefore AFFIRMED.          ________________________________________________________                                         -9-
