
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1371                              UNITED STATES OF AMERICA,                                Petitioner, Appellee,                                          v.                                    ROBERT FORBES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Torruella, Circuit Judge.                                            _____________                                 ____________________            C. Sidney  Lester with whom  Lester, Hubbert &  Gill, P.C. was  on            _________________            _____________________________        brief for appellant.            Edwin O.  Vazquez, Assistant  United  States  Attorney, with  whom            _________________        Guillermo  Gil, United States Attorney, and   Jose A. Quiles-Espinosa,        ______________                                _______________________        Senior Litigation Counsel, were on brief for appellee.                                 ____________________                                  February 25, 1994                                 ____________________                Coffin, Senior Circuit Judge.   Robert George Forbes appeals                        ____________________          his  conviction and sentence for illegal  reentry into the United          States after deportation, 8 U.S.C.   1326.  We affirm.                                I.  Factual Background                                    __________________                In August  1992, Robert George  Forbes, a  Jamaican citizen,          was  deported from  New York  to Jamaica.   The  following month,          Forbes  attempted  to reenter  the  United  States  with a  false          passport that had been altered to include his picture.  A federal          grand jury in the District of Puerto Rico subsequently returned a          two count indictment against Forbes, charging him with unlawfully          using an altered passport, in violation of 18 U.S.C.    1543, and          with unlawfully  attempting to  reenter the  United States  after          having previously been arrested and  deported, in violation of  8          U.S.C.   1326.1                                          ____________________               1The indictment reads as follows:                                      Count One                                      Count One                     On  or about  September 20,  1992, in  the District  of                Puerto Rico, and within the jurisdiction of this Court,                                  Robert George Forbes                                 Robert George Forbes                                    also known as                                    also known as                                Julian David Brynteson                                Julian David Brynteson                the defendant herein, while applying  for admission into the                United   States  of   America,  willfully,   knowingly,  and                unlawfully, did  use an  altered  passport,  to wit:  United                Kingdom passport  number 003856139  in  the  name of  JULIAN                DAVID BRYNTESON which passport had  been altered by removing                the photograph  of the owner  and replacing it  with one  of                the defendant.  All in violation of Title 18, United  States                Code, Section 1543.                                      COUNT TWO                                      _________                     On  or about  September  20, 1992,  in the  district of                Puerto Rico and within the jurisdiction of this Court,                                  Robert George Forbes                                 Robert George Forbes                                    also known as                                    also known as                                Julian David Brynteson                                Julian David Brynteson                                         -2-                On December 16, 1992, Forbes entered into a plea  agreement,          in which he pled guilty only to the charge of unlawfully entering          the  United States, in violation of 8 U.S.C.    1326.  As part of          his plea, Forbes  waived his right to appeal  "any legal sentence          imposed by the Court under  the Sentencing Guidelines as a result          of this Plea Agreement."                  Forbes' presentence report (PSR)  computed his total offense          level at 21: 8 points were assigned as the base offense level for          convictions under 8 U.S.C.    1326, 16 points were  added for his          previous deportation after a conviction for an aggravated felony,          and 3 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).   The PSR  also          ___          recommended  a  criminal  history category  of  III,  based  on 4          criminal history points.  See U.S.S.G.   5, Part A.                                    ___                At  a  sentencing  hearing  held  on  March  12,  1993,  the          district  court adopted  the  recommendations  of  the  PSR,  and          determined the corresponding  sentencing guidelines  range to  be          46-57 months.  Based on  evidence of Forbes' cooperation with the          government  in  other  cases, and  his  continued  willingness to                                        ____________________                the  defendant herein,  being an  alien  previously arrested                and deported  from the United States,  that is, on or  about                August  18,  1992, to  Jamaica,  willfully,  knowingly,  and                unlawfully did attempt  to reenter the United States from  a                place outside of the United  States without having obtained,                prior  to  his  reembarkation,   the  express  consent   and                permission   from  the   Attorney  General  of   the  United                Stat[e]s.  All in violation of Title 8, United States  Code,                Section 1326.                                         -3-          cooperate in the  future, the sentencing judge  departed downward          from the applicable guideline range, and imposed a sentence of 36          months  plus  three years  of  supervised release.    This appeal          followed.                Forbes argues  that the  waiver of  his right  to appeal  is          ineffective, because it  was not knowingly and  voluntarily made;          and that, even were the waiver effective, he still has a right to          appeal  his sentence,  because the  court erred  in applying  the          Sentencing Guidelines to  compute his sentence.   He also  claims          that the  government's failure  to allege  in his  indictment the          aggravated felony used  to enhance his sentence under  8 U.S.C.            1326(b)(2) renders the  indictment sufficient only to  charge him          with a  violation of 8 U.S.C.   1326(a).   Forbes' final claim is          that the use of a prior felony conviction to enhance his sentence          under     1326   violates  the  ex  post  facto   clause  of  the                                          __  ____  _____          Constitution.                              II.  The Waiver Provision                                   ____________________                By  its  terms,  the  waiver   provision  in  Forbes'   plea          agreement is narrow, covering only  the right to appeal any legal                                                                      _____          sentence imposed  under the Sentencing  Guidelines.  We  need not          reach  the  question  of  whether  his  waiver  was  knowing  and          voluntary,  nor whether Forbes'  claims lie  beyond the  scope of          this waiver, because his  appeal suffers from a more  fundamental          defect.  Because  he failed to raise any of  these claimed errors          before the district court, with the exception of his challenge to          the sufficiency of  the indictment, see infra at  5-14, we cannot                                              ___ _____                                         -4-          correct them  absent a showing  of plain error, United  States v.                                                          ______________          Carozza, 4 F.3d  70, 86-87 (1st Cir. 1993).  As we discuss below,          _______          Forbes has failed to make such a showing here.                             III.  Forbes' Section 1326 Claim                                 __________________________                Forbes  pled  guilty  to  one   count  of  unlawful  reentry          following deportation, in violation of  8 U.S.C.   1326, the full          text  of which is  set forth in  the margin.2   Subsection (b) of          this provision  was added  by Congress as  part of  the Anti-Drug          Abuse Act of 1988, see Pub. L. 100-690, Title VII,   7345(a), 102                             ___          Stat. 4471  (codified as amended  at 8 U.S.C.    1326(b) (1988)).          Forbes'  indictment  alleged  only  unlawful  reentry   following                                        ____________________               2This statute provides:                (a) Subject  to subsection  (b) of  this section,  any 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,   unless   (A)   prior  to   his                reembarkation at a place  outside the United  States or  his                application   for   admission   from   foreign    contiguous                territory, the Attorney General  has expressly consented  to                such alien's reapplying for admission;  or (B) with  respect                to an  alien previously excluded  and deported,  unless such                alien shall  establish that  he was not  required to  obtain                such advance consent under this chapter or any prior Act,                shall be fined under  Title 18, or imprisoned not more  than          2 years, or both.                (b) Notwithstanding subsection (a) of  this section, in  the                case of any alien described in such subsection--                     (1) whose  deportation was subsequent  to a  conviction                for  commission  of  a  felony  (other  than  an  aggravated                felony),  such  alien  shall  be   fined  under  Title   18,                imprisoned not more than 5 years, or both; or                     (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.                                         -5-          deportation,  and did  not  include any  reference  to his  prior          aggravated   felony  conviction.      Forbes   claims  that   the          government's failure to  allege the prior aggravated  felony that          permitted it  to sentence him  within the limits set  forth under          subsection  (b)(2)  renders  the  indictment  sufficient only  to          charge a violation  of   1326(a), and requires  that his sentence          be contained  within  the statutory  maximum  set forth  by  that          subsection.  If, as Forbes contends,             1326(a) and   1326(b) describe separate and distinct  offenses,          his sentence  cannot stand,  because he  cannot be  sentenced and          convicted under a statutory provision under which he has not been          indicted.   Hamling v.  United States, 418  U.S. 87,  117 (1974);                      _______     _____________          United States  v.  McDonough, 959  F.2d 1137,  1140-41 (1st  Cir.          _____________      _________          1992).          The government  replies  that  Forbes' failure  to          present this issue before the district court bars this court from          considering  it on  appeal.    It claims,  further,  that    1326          describes only  a single  offense, and that  subsection (b)  is a          sentence  enhancement  provision,  which  permits  the  court  to          increase  the  penalties   for  a  violation  depending   on  the          defendant's criminal record.                  Forbes'  failure  to  point  out  perceived  defects  in the          indictment does not  preclude our consideration of  this argument          on appeal.  Under Federal Rule of Criminal Procedure 12(b)(2), an          objection that an indictment fails to  state an essential element          of an  offense "shall be noticed by the  court at any time during          the pendency of  the proceedings."  This objection  may be raised                                         -6-          by  a defendant  for the first  time on appeal,  United States v.                                                           _____________          Seuss, 474 F.2d  385, 387 n.2 (1st  Cir. 1973), or by  an appeals          _____          court sua sponte, see United States v. Saade, 652 F.2d 1126, 1133                ___ ______  ___ _____________    _____          (1st Cir. 1981)  (citing cases).  When such an objection is urged          for  the   first  time  on  appeal,  courts  have  required  that          indictments be construed  liberally, finding an indictment  to be          sufficient unless there is no reasonable construction by which it          could charge  an offense for  which the defendant  was convicted.          See, e.g.,  United States v.  Wilson, 884 F.2d 174,  179-181 (5th          ___  ____   _____________     ______          Cir. 1989).   While  statutory citation,  standing alone,  cannot          substitute  for setting  forth the  elements of  a crime,  it may          reinforce other references  in the indictment so as  to render it          valid.  United States v. McLennan, 672 F.2d 239, 243-44 (1st Cir.                  _____________    ________          1982).                Forbes'  indictment  follows  the  language  of  8  U.S.C.            1326(a).    It makes  no reference  to the  fact that  Forbes was          deported subsequent  to a  conviction for  an aggravated  felony.          If, as Forbes  maintains, an aggravated  felony conviction is  an          element of a    1326(b) offense, his  indictment is insufficient,          because  it fails to set  out an essential  element of an offense          under that section.                Whether   1326(a) and    1326(b) describe separate  criminal          offenses, with  different elements  and maximum  penalties, or  a          single  offense,   allowing  sentence  enhancement  based   on  a          defendant's  criminal history, is an issue of first impression in                                         -7-          this  court.3   The  District  Court for  the  District of  Rhode          Island, the only court within  our circuit to address this issue,          recently held that   1326(a) and   1326(b) set forth separate and          distinct offenses, with different elements and maximum penalties.          United States v. Vieira-Candelario, 811 F. Supp. 762, 768 (D.R.I.          _____________    _________________          1993).   The Fifth  and the Ninth  Circuits, both  of which  have          tackled  this issue in the past two  years, have come to opposite          conclusions.  See United States  v. Campos-Martinez, 976 F.2d 589                        ___ _____________     _______________          (9th Cir. 1992) (sections 1326(a) and (b) state separate crimes);          United States  v. Gonzalez-Medina, 976  F.2d 570 (9th  Cir. 1992)          _____________     _______________          (same)4; United States v. Vasquez-Olvera, 999 F.2d 943  (5th Cir.                   _____________    ______________          1993) (section  1326(b)  is a  sentence enhancement  provision)5;          see also  United States v. Crawford,  815 F. Supp. 920  (E.D. Va.          ___ ____  _____________    ________          1993) (same).                In determining whether a statute  is a sentence  enhancement          provision  or  a  separate  criminal  offense,  we  look  at  its          language,  structure, and legislative history.  See, e.g., United                                                          ___  ____  ______                                        ____________________               3We have,  however, noted the  issue.  See United  States v.                                                      ___ ______________          Zapata, 1  F.3d 46, 50 n.5 (1st  Cir. 1993) (citing United States          ______                                       ______ _____________          v. Vieira-Candelario, 811 F. Supp. 762, 768 (D.R.I. 1993)).             _________________               4The Ninth  Circuit decisions  gave no  rationale for  their          conclusion  that these  provisions  described separate  offenses,          with different elements and maximum sentences, other  than to say          that this statute was similar to 8 U.S.C.   1325, which counted a          prior conviction  for illegal entry  as an element of  the felony          offense under  that section.   See  Campos-Martinez, 976  F.2d at                                         ___  _______________          591-92; Gonzalez-Medina, 976 F.2d at 572-73.                  _______________               5Judge  King wrote a dissenting opinion in which she adopted          the  Ninth Circuit's analysis in Campos-Martinez and the District                                           _______________          of Rhode  Island's analysis  in Vieira-Candelario.   999  F.2d at                                          _________________          947-950.                                         -8-          States v. Rumney, 867 F.2d 714, 717-18 (1st Cir. 1989) (examining          ______    ______          these  factors in  holding  that provision  of  the Armed  Career          Criminal Act of 1984 was a sentence enhancer, and not  a separate          offense).   We have  noted that  particular structural  features,          such as a  penalty that is a  multiplier of the sentence  for the          underlying  crime,  or  a   title  denoting  it  as   a  sentence          enhancement provision, may indicate that a statutory provision is          a sentence  enhancer, but we  have not treated these  features as          conclusive.   See id. at  718-19.  Our  analysis begins with  the                        ___ ___          statute's language and structure.                In  our view,  the  language  and  structure are  unhelpful,          because the  provisions are  subject to  two plausible  readings.          The first  was adopted by the  Fifth Circuit and used  to support          its  conclusion that  subsection (b)  is  a sentence  enhancement          provision.   Vasquez-Olvera, 999 F.2d  at 946.  That  court noted                       ______________          that,  in drafting the  introductory language of  subsections (a)          and   (b),  Congress   intertwined   the   two  provisions:   the          introductory  language  of  subsection  (a)  states  "subject  to          subsection (b) of this section," and the introductory language of          subsection  (b)  states,  "subject  to  subsection  (a)  of  this          section."   The  Fifth Circuit  found  that it  would be  "highly          unlikely that Congress would structure  the statute in such a way          that subsection (b) is  dependent on elements of subsection  (a),          if  it intended  for subsection  (b)  to be  a separate  criminal          offense."  Id.; accord Crawford, 815 F. Supp. at 923.                       ___  ______ ________                                         -9-                We believe it  just as likely, however, that subsection  (b)          incorporates  the offense described in subsection (a), and simply          adds the  additional element  regarding a  prior conviction of  a          felony  or aggravated felony.   Vasquez-Olvera,  999 F.2d  at 948                                          ______________          (King, J. dissenting);  see also Vieira-Candelario, 811  F. Supp.                                  ___ ____ _________________          at 767 (finding  the statute's  plain language  ambiguous).   The          fact that each subsection makes  reference to the other is simply          the  logical way  of  indicating  the  relationship  between  the          arguably two separate crimes.                  Nor does the title of the statute offer sufficient  guidance          about whether subsection (b) is a sentence enhancer or a separate          element  of the  crime.   Before 1988,  the statute  was entitled          "Reentry of deported alien."  In 1988, the statute was amended to          add  subsection (b),  and  to  change the  title  to "Reentry  of          deported  alien;   criminal  penalties  for  reentry  of  certain          deported aliens."  One  court has argued that this change  in the          title indicates  that in  amending    1326, Congress  intended to          create  enhanced penalties for  certain aliens who  committed the                                          _______          underlying offense  of  unlawfully reentering  the United  States          following deportation.   Crawford, 815 F. Supp. at  924; see also                                   ________                        ___ ____          United States  v. Vasquez-Olvera,  999 F.2d at  945.   While this          _____________     ______________          argument has some force, we think that a competing interpretation          is equally permissible.   The bifurcated structure of    1326 and          the apparent incorporation of the elements of subsection (a) into          subsection  (b) might  also suggest  that  Congress intended  the          broad title of the offense ("reentry of deported alien") to apply                                         -10-          to both separate offenses in the different subsections.  Vasquez-                                                                   ________          Olvera, 999 F.2d at 949 (King, J., dissenting).  Finally, we have          ______          not  found any  legislative  history  discussing this  particular          aspect of 8 U.S.C.   1326(b)(2).  Lacking   insight    from   the          language, structure and  legislative history we are  compelled to          take a broader look  at the factors  implicated by a decision  to          classify a provision either as  a sentence enhancer or a separate          crime.   In  so doing,  we  have  found guidance  in  a  previous          decision of  this court  addressing a similar  issue.   In United                                                                     ______          States v. Rumney, 867 F.2d 714 (1st Cir. 1989), we were  asked to          ______    ______          determine  whether the  Armed  Career Criminal  Act, 18  U.S.C.            1202(a) (Supp.  1984)  (ACCA)6,  was a  sentence  enhancer  or  a          separate substantive  crime.  Section  1202(a) penalized receipt,          possession, or  transportation of  firearms by  those with  prior          felony convictions.   The ACCA amended  this statute to  increase          the minimum  penalty for  a person who  "receives, possesses,  or          transports in  commerce  . .  .  any firearm  and  who has  three          previous felony convictions."  18 U.S.C.   1202(a) (Supp.  1984).          Rumney, like  Forbes, challenged  his sentence  under the  higher          maximum,  arguing that the  government's failure to  allege three          prior convictions  in  the  indictment  rendered  the  indictment          insufficient to charge a violation of the ACCA.  867 F.2d at 717.                We  resolved  the  question  in  Rumney  primarily  based on                                                 ______                                        ____________________               6The statute  has since  been recodified  into two  separate          provisions.    The  first  sentence  of  the  former     1202(a),          describing  the  unlawful conduct,  now  appears at  18  U.S.C.            922(g), while the  ACCA provision has been  incorporated into the          other penalty provisions of 18 U.S.C.   924(e).                                           -11-          legislative history, which demonstrated Congress' intent that the          ACCA  be  a  sentence  enhancer,  and  not  a separate  statutory          element.  We  also observed, however, that the  special nature of          the  disputed  prior  crimes  provision   further  supported  its          classification  as a  sentence enhancer.   Rumney, 867  F.2d 714,                                                     ______          718-19; see  also United  States v. Jackson,  824 F.2d  21, 25-26                  ___  ____ ______________    _______          (D.C. Cir. 1987).                  We felt it  significant that if the disputed provision  were          deemed a separate  element, the government  would be required  to          place evidence of the defendant's prior felony convictions before          the jury.   The introduction  of prior crimes evidence  is highly          prejudicial, and  should not  be permitted  lightly, Rumney,  867                                                               ______          F.2d at  719; see  also Jackson,  824 F.2d  at 25  (noting strong                        ___  ____ _______          Congressional policy  of avoiding  introduction of  this type  of          potentially  prejudicial  evidence  in criminal  trials).   Thus,          strong  policy reasons for keeping information about prior crimes          from the jury  counselled in favor of our  determination that the          ACCA  was a  sentence enhancer,  an issue  to be  decided  by the          judge.                In addition, under  traditional sentencing procedures, proof          of  a defendant's prior felony  convictions typically is the type          of individual background information considered by the judge, and          not the jury, see Gov't  of Virgin Islands v. Castillo,  550 F.2d                        ___ ________________________    ________          850, 853 n.5  (3rd Cir. 1977); see  also id. at 854  (noting that                                         ___  ____ ___          additional language in statutory provision that increased penalty          for  conduct which  was already a  crime was  in the nature  of a                                         -12-          sentencing statute  rather than  a substantive offense  statute).          Compare United  States v.  Michael, 10 F.3d  838, 842  (D.C. Cir.          _______ ______________     _______          1993)   (concluding   that  statutory   amendment   singling  out          possession of cocaine base for  especially harsh penalties was  a          separate element, and not a sentence enhancer, based, in part, on          observation  that unlike  consideration  of prior  crimes,  whose          admission   before   the  jury   was   highly  prejudicial,   the          determination of the character of  the drug was an aspect of  the          events associated with  the crime itself, and a  fact that juries          typically resolve).   And,  as we noted  in Rumney,  "the primary                                                      ______          rationale  for requiring sentencing factors to  be submitted to a          jury -- the necessity for  accurate factfinding -- does not apply          in  the instant case.   Prior  convictions are  highly verifiable          matters  of record  which need  not be  subject to  jury inquiry.          Because defendants  had received  the totality of  constitutional          protections  due   in  the   prior  proceedings,   no  additional          factfinding  is necessary."    867 F.2d  at  719 (quoting  United                                                                     ______          States v. Brewer, 853 F.2d 1319, 1326 (6th Cir. 1988)).7          ______    ______                This reasoning  similarly applies here.   If we find that             1326(b)   is  a  separate  element,  a  defendant's  past  felony                                        ____________________               7As  the Fifth  Circuit has  explained in  the context  of a          similar recidivist statute, prior  convictions "have no  relation          to  the circumstances  of the  wrongdoing  constituting the  most          recent offense, but rather to something which is wholly unrelated          thereto.   Further, they  do not relate  to determining  what the          accused  has  done  but  rather  what the  state  has  previously                                                                 __________          determined that  he has done.   And  that previous  determination          must have  been a  formal, judicial determination  of guilt;  and                                     ________                   _____          hence  one  as  to  which  the  full  measure  of  constitutional          protections was available."  Buckley v. Butler, 825 F.2d 895, 903                                       _______    ______          (5th Cir. 1987).                                         -13-          conviction  would  have  to  be  revealed to  the  jury.8    This          information  is  especially  prejudicial   where,  as  here,  the          underlying crime (unlawful  reentry following deportation)  might          not  be viewed  by the  jury as  particularly egregious.   In the          absence  of Congressional direction,  we are reluctant  to impose          that burden  on defendants.   We realize that the  defendant here          argues for a determination that    1326(b) is a separate element.          The  posture  of   this  particular  case  makes   that  position          strategically desirable.  But the  omission of an element from an          indictment is an  error easily remedied by  the government, while          the prejudice  from the  introduction of prior  crimes is  not so          easily neutralized.  In the  long run, we believe that defendants          have  more to  lose  than  gain from  the  interpretation of  the          provision urged by Forbes on this appeal.                Thus,  while we  have no direction from  the statute itself,          policy and  precedent  persuade  us  that     1326(b)  should  be          construed  as a sentence  enhancement provision.   The indictment          therefore need not  have alleged Forbes' prior  aggravated felony          conviction to permit his sentencing under   1326(b).                            IV.  Sentencing Guidelines Claims                               ____________________________                Forbes raises three additional claims  of error with  regard          to the  calculation of his  sentence.  First, he  argues that the          sentencing court  erred in increasing  his base offense  level by                                        ____________________               8In some cases,  this may include evidence of  more than one          conviction.  For example, an aggravated felony within the meaning          of 8  U.S.C.    1326(b)(2)  might be  made up  of  more than  one          criminal act.  See infra at 15-17.                         ___ _____                                         -14-          sixteen points  under guideline  provision 2L1.2(b)(2), based  on          the finding that Forbes previously was deported after having been          convicted  for  an aggravated  felony.   Forbes  claims  that the          offense  on which the  government relied  to support  the sixteen          point  penalty  enhancement  does not  qualify  as  an aggravated          felony.    Second,  he  contends  that  the  application  of  the          aggravated  felony enhancement to this conviction violates the ex                                                                         __          post facto clause of the Constitution.  Finally, he argues that a          ____ _____          1986  violation for  which he  received  a conditional  discharge          sentence should not have been  included in the calculation of his          criminal history category.                As   noted  above,  Forbes  did  not  raise   any  of  these          challenges before the  district court, and they  consequently are          subject to only plain error review.  See p. 4 supra.                                                 ___      _____                                         -15-                         A.  Aggravated felony determination                             _______________________________                The  Sentencing  Guidelines relating  to  offenses  under  8          U.S.C.   1326 are set forth at  U.S.S.G.   2L1.2.  This provision          sets the  base offense level  for unlawful entry into  the United          States  at  8, with  an  increase of  4 levels  if  the defendant          previously was deported  after conviction for a felony,  or 16 if          the defendant  previously was  deported after  conviction for  an          aggravated  felony.9    Forbes argues  that  his  1988 conviction          under N.Y. Penal Law   220.09 (McKinney 1989) does not qualify as          an aggravated  felony.  He  claims, therefore, that  by assigning          him 16 points for this  conviction, the court overstated his base          offense level.                                        ____________________               9The  offense of  conviction,  8  U.S.C.     1326,  and  the          applicable  guidelines,  U.S.S.G.      2L1.2,  share  a   similar          structure,  but serve  different functions.    Section 1326  sets          forth the elements  of the offense and the  maximum penalties for          convictions  under  this section.    Once  a  defendant has  been          convicted, the  guidelines operate to  determine the  appropriate          penalty within this  range.  In this case,  the guidelines direct          the  court to consider  specific offense characteristics  under            2L1.2, which include previous deportation following an aggravated          felony conviction, in order to determine the applicable guideline          sentencing range,  see U.S.S.G.     1B1.2(b)  & application  n.2;                             ___          2L1.2(b)(2).   Under  the guidelines,  courts  may consider  such          information for sentencing  purposes even where this  conduct was          not an element of the offense of conviction.  For example,  if we          were to hold  that   1326(a) and (b) were  two separate offenses,          and that Forbes could be convicted and sentenced only under              1326(a), we still  could consider his  prior aggravated felony          conviction in calculating his sentence under 2L1.2.  The sentence          we  could impose  however, would have  to be within  the two year          range set forth  in   1326(a).   See United States v.  Arias, 941                                           ___ _____________     _____          F.2d 996 (9th Cir.  1991) (holding that defendants'  prior felony          convictions, though not  encompassed within a conviction  under            1326(a),  could  still  be  considered in  computing  defendants'          sentence  under  U.S.S.G.    2L1.2,  provided  that  the sentence          imposed did  not exceed  the two-year  statutory maximum  under            1326(a)).                                         -16-                "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  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.)."  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  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).          ______    ______                Forbes   argues  that   the  New   York  offense,   Criminal          Possession of  a Controlled Substance in the  Fourth Degree, does          not meet either criterion, and  therefore should not be construed          as  an  aggravated  felony.    His  argument  fails   because  it          misapprehends  the   operation  of   the  applicable   sentencing          guideline.                Possession of drugs is punishable under  21 U.S.C.   844(a),          a part of the Controlled  Substances Act.  This statute provides,          in relevant part:                It   shall  be   unlawful  for   any  person   knowingly  or                intentionally to possess a controlled substance unless  such                                         -17-                substance was  obtained directly,  or  pursuant  to a  valid                prescription order,  from  a practitioner,  while acting  in                the  course  of  his  professional  practice,  or  except as                otherwise authorized by this subchapter  or subchapter II of                this  chapter.  Any person who violates  this subsection may                be sentenced  to a term of  imprisonment of not  more than 1                year,  and shall  be fined  a minimum  of $1,000,  or  both,                except  that  if  he  commits  such  offense  after a  prior                conviction under  this subchapter or  subchapter II  of this                chapter,  or a  prior conviction  for any  drug or  narcotic                offense  chargeable under  the law  of any State  has become                final, he shall be  sentenced to a term of imprisonment  for                not less than 15 days  but not more than  2 years, and shall                be fined a minimum of $2,500 . . . .                A felony  is defined under  the Controlled Substances Act as          "any Federal or State offense classified by applicable Federal or          State Law as a  felony."  21 U.S.C.   802(13).  Under 18 U.S.C.            3559(a), an  offense is a  felony if the maximum  term authorized          for the offense  is "more  than one year."   The maximum  penalty          authorized under 21 U.S.C.    844(a) for simple possession is one          year.  However, one prior conviction turns simple possession into          a felony since  the maximum penalty increases to over a year.  In          this case,  Forbes' 1987  conviction for  Criminal Possession  of          Marijuana in the Fifth Degree, in violation of N.Y. Penal Law             221.10  (McKinney 1989),  converts his  later conviction  under          N.Y.  Penal  Law    220.09  into  a  felony.10   Because  Forbes'          conviction  is  a  felony  punishable  by  one  of  the  statutes                                        ____________________               10Moreover,  possession  is  a felony  under  the applicable          state law.   In New  York, the maximum imprisonment  for Criminal          Possession of  a Controlled  Substance in  the  Fourth Degree  is          fifteen  years, see  N.Y. Penal  Law     220.09 (McKinney  1989),                          ___          70.00 (McKinney  1987), and  any criminal  offense punishable  by          more than one  year is a felony, N.Y. Penal Law   10.00 (McKinney          1987).   Thus, under  the definition of  a felony in  21 U.S.C.            802(13), Forbes' possession  conviction, which is a  felony under          New York  Law, is also  a felony under the  Controlled Substances          Act.                                         -18-          enumerated in 18 U.S.C    924(c)(2), it therefore qualifies as an          aggravated felony within the meaning of U.S.S.G.   2L1.2.                                         -19-                           B.  Ex post facto determination                               ___________________________                The  ex post  facto provision  of the  Constitution bars the                     __ ____  _____          retrospective application  of laws  that materially  disadvantage          the defendant.  See  U.S. Const., Art. I,    9, cl. 3; Art.  I,                            ___          10, cl. 1.  A central concern of the ex post facto prohibition is                                               __ ____ _____          to  assure  that legislative  acts  "give fair  warning  of their          effect  and permit  individuals to  rely  on their  meaning until          explicitly changed."  Miller v. Florida, 482 U.S. 423, 430 (1987)                                ______    _______          (quoting Weaver v. Graham, 450 U.S. 24, 28-29 (1981)).           _______ ______    ______                Forbes  argues that  the use  of  his prior  convictions  to          trigger  the  aggravated   felony  enhancement  provision  of              1326(b)(2) violates the  ex post facto provision both because the                                   __ ____ _____          convictions on which this enhancement was based occurred prior to          the  effective date of  the amendments adding  subsection (b)(2),          and  because  he  had  no  fair warning  of  the  possible  post-          conviction  effects of the  aggravated felony determination.   In          support of his  claimed lack of "fair warning,"  Forbes points to          his comment to the district  judge at his sentencing hearing that          he had  not been told by the immigration  judge that he was being          deported "on an aggravated felony."                 In Gryger v. Burke,  334 U.S. 728 (1948), the Supreme  Court                   ______    _____          addressed  Forbes'  first  argument  in the  context  of  a state          habitual criminal act.   In that case, the  Court upheld, against          an ex post  facto challenge,  a state  habitual criminal  statute             __ ____  _____          enhancing  penalties for  crimes on  the  basis of  a defendant's          prior  criminal convictions, including  one which occurred before                                         -20-          the  enactment of  the  statute.    Id.  at  732.    Gryger  thus                                              ___              ______          recognized  the  legislature's  authority to  enact  an  enhanced          penalty  for future  conduct preceded  by  a criminal  conviction          obtained  prior to enactment  of the enhanced  penalty provision.          See Covington v. Sullivan, 823 F.2d 37, 39 (2d Cir. 1987).            ___ _________    ________                Forbes was  convicted of  a violation  of 8  U.S.C.    1326,          which applies to  aliens who illegally reenter the  United States          following  deportation.   By  its  terms,  the  amendment  adding          subsection (b)  applies to  any alien who  enters or  attempts to          enter the United States after November  18, 1988 (the date of the          Act's enactment). See Pub. L.  100-690, Title VII,   7345(b), 102                            ___          Stat. 4471.  Forbes violated  this statute by attempting to enter          the  United  States  illegally  on September  20,  1992,  and the          district court  enhanced  his  punishment  based  on  convictions          entered prior to the effective date of the Act.                  Forbes  cannot  claim that  subsection  (b)(2)  "makes  more          onerous   the  punishment   for  crimes   committed  before   its          enactment."  Weaver, 450  U.S. at 36.   Forbes is being  punished                       ______          for the  crime of unlawful reentry, in violation  of   1326.  The          enhancement provision  increases the punishment  for this  crime.                                                               ____          It does  not affect the  punishment that Forbes received  for the          crimes he  committed prior to the effective date  of the Act.  As          the Gryger 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.   334  U.S. at 732.   Rather,  an enhanced                                         -21-          penalty  "is  not  to  be viewed  as  either  a  new jeopardy  or          additional penalty  for the  earlier crimes.   It is  a stiffened          penalty  for the  latest  crime,  which is  considered  to be  an          aggravated offense because a repetitive one."  Id.                                                         ___                Nor does  Forbes' claim that he  lacked fair warning of  the          application of the aggravated felony provision  to his crime have          merit.   He may,  in fact, have  been unaware  of this;  but fair          notice,  as the  sentencing judge  stated, is  "what the  statute          says, not what the  immigration officer might tell you."   At the          time  of Forbes'  unlawful reentry,    1326  plainly provided  an          enhanced sentence  based on  prior conviction  for an  aggravated          felony.                          C.  Conditional discharge sentence                              ______________________________                Forbes' final  claim is  that the  district  court erred  in          calculating  his criminal  history by  factoring  in one  offense          level  point for a  prior conditional discharge  sentence that he          received for pleading guilty to Unlawful Possession of Marijuana,          in violation  of N.Y.  Penal Law    221.05  (McKinney 1989).   He          claims that this  disposition was not a  criminal conviction, and          therefore does  not justify a  point under  U.S.S.G.    4A1.1(c),          which  adds  one  point  for  each  sentence  received  following          criminal conviction.                  We  need not reach  the merits of  this claim  because it is          evident that  no plain  error occurred.   Forbes points  out that          excluding  the  challenged violation  from  his  criminal history          category  would reduce his designated sentencing range from 46-57                                         -22-          months to  41-51 months.   The sentence imposed, after  the court          departed  downward, was  only  36 months.   Because  the sentence          Forbes  received is  still below  the guidelines  range  which he          advocates as correct,  we can find no plain error.  See Carrozza,                                                              ___ ________          4 F.3d at 87-91.                  The decision of the district court is affirmed.                _______________________________________________                                         -23-
