
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1437                                             UNITED STATES,                                      Appellee,                                          v.                             ALLAN ROBERTO GUEVARA-LOPEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            George M. Hepner, III on brief for appellant.            _____________________            Jay P.  McCloskey, United  States  Attorney,  Frederick C.  Emery,            _________________                             ____________________        Jr., and Margaret D. McGaughey, Assistant United  States Attorneys, on        ___      _____________________        brief for appellee.                                  ____________________                                    August 6, 1996                                 ____________________                      Per  Curiam.   Allan Roberto  Guevara-Lopez appeals                      ___________            from  his sentence for  illegal reentry after  deportation in            violation of  8  U.S.C.    1326  (a) and  (b)(2).   His  sole            argument  on appeal is that the district court misinterpreted            Section 2L1.2 of  the United States Sentencing  Guidelines in            imposing a  16-level enhancement  to his  base offense  level            because he had  been "previously deported after  a conviction            for an aggravated felony." U.S.S.G.   2L1.2(b)(2).                 The issue presented  by this case is the  meaning of the            term "deported"  for purposes  of   2L1.2(b)(2).   We  review            that question of  law de novo. See United  States v. DiSanto,                                  __ ____  ___ ______________    _______            86  F.3d  1238,  1244  (1st  Cir.  1996).    "[A]lthough [the            sentencing guidelines]  are not  statutes, [they]  are to  be            construed in much the same fashion." United States v. DeLuca,                                                 _____________    ______            17 F.3d  6, 10 (1st  Cir. 1994).  Therefore,  construction of            the relevant guideline  section should begin "'by  looking at            the language  of the  law' and  by  examining the  'ordinary,            contemporary, common meaning' of the words." United States v.                                                         _____________            Holmquist,  36 F.3d  154,  159  (1st  Cir.  1994)  (citations            _________            omitted), cert. denied, __ U.S. __, 115 S. Ct. 1797 (1995).                      ____________                 There is nothing inconsistent or ambiguous about the use            of the  term "deported"  in   2L1.2  itself.   That guideline            section,   however,   "implements  the   statutory   sentence            enhancement  provisions of 8 U.S.C.   1326(b)." United States                                                            _____________            v.  Restrepo-Aguilar, 74 F.3d  361, 363 n.2  (1st Cir. 1996).                ________________                                         -2-            We will accept for the purposes of this appeal the conclusion            that  the use  of the  term "deported"  in    1326  and other            sections  of  that  statute  is  "not entirely  unambiguous."            United  States v.  Cooke, 850  F. Supp. 302,  303   (E.D. Pa.            ______________     _____            1994), aff'd, 47 F.3d 1162 (3d Cir. 1995).                    _____                 We  agree with the  sentencing court, however,  that the            purposes  and underlying  policy  of  U.S.S.G.    2L1.2(b)(2)            remove any ambiguity that might otherwise exist regarding the            meaning  of  "deported" in  that context.   We  interpret the            word's meaning in light of the purposes of   2L1.2(B)(2). See                                                                      ___            United States v.  Caron, 77 F.3d 1, 3  (1st Cir. 1996)("'[a]s            _____________     _____            in  all cases  of  statutory  construction,  our task  is  to            interpret the words of [the statute] in light of the purposes            Congress  sought to serve'"); see also  Holmquist, 36 F.3d at                                          ___ ____  _________            160 ("a statute must be read as  a whole, with due regard for            its object, purposes and underlying policy").                    Underlying  the  relevant  guideline  section  are   the            following policy determinations by the Sentencing Commission:                 that  the offense of unlawful reentry subsequent to                 perpetrating an  aggravated felony  is sufficiently                 more  serious  than  the  commission  of  the  same                 offense  while  toting  less weighty  baggage  and,                 thus, warrants  greater punishment,  [and] that  an                 alien  who,   having  been  deported   following  a                 conviction  for an  aggravated  felony, and  having                 exhibited  a willingness to flout our laws again by                 reentering the  country without permission,  may be                 more  likely to commit serious crimes than an alien                 who  unlawfully  reenters  this   country  with  no                 criminal record or with a less sullied record, and,                 thus,  deserves  a  sentence    possessing  greater                 deterrent impact.                                         -3-            United States v. Zapata, 1 F.3d 46, 49 (1st Cir. 1993).              _____________    ______                 The interpretation of  "deported" urged by appellant  is            plainly inconsistent with the purposes and  underlying policy            of   2L1.2.  It is the fact that a defendant has committed an            aggravated felony  in this country  that makes  his crime  of            reentry  more serious  and deserving  of  greater punishment.            That  the aggravated felony  was committed after  an order of            deportation  was issued (but  before the order  was executed)            does  not at  all  reduce  the seriousness  of  the crime  of            reentry or the  need for a greater deterrent  to reentry. See                                                                      ___            Cooke, 850 F. Supp. at 306.            _____                 If    2L1.2  were  aimed  at  producing  sentences  that            differed based  upon the  reason for  the deportation  order,                                      ______            then   appellant's  argument  might  have  some  merit.    An            aggravated felony conviction that follows a deportation order            cannot have been  the reason for the order.    The commentary            to   2L1.2, however, specifically provides  that "'[d]eported            after  a  conviction'  .  .  .   means  the  deportation  was            subsequent  to the conviction, whether or not the deportation            was in response to such conviction."   2L1.2, comment. (n.6).            Therefore, the  Sentencing Commission clearly did  not intend            to  increase  the  punishment only  for  defendants  who were            deported because of an aggravated felony conviction.                     _______ __                 Appellant  argues  that  the  meaning  of  the  relevant            guideline provision  is sufficiently ambiguous  that the rule                                         -4-            of  lenity  requires  resolution  in  his  favor.    We  have            explained the rule of lenity as follows:                      When  all  else  fails   to  bring  sufficient                 lucidity to the  meaning of the penal  statute, the                 rule of lenity casts the decisive vote.  That rule,                 which mandates  the resolution of ambiguities  in a                 criminal  statute favorably  to the defendant  is a                 'background principle that comes into play when, at                 the end  of a  thorough inquiry,  the meaning of  a                 criminal statute remains obscure.'            United  States v.  Gibbens, 25  F.3d 28,  35 (1st  Cir. 1994)            ______________     _______            (citations  omitted).   In  this  case,  the meaning  of  the            relevant guidelines  provision does  not "remain[]  obscure."            The  purposes and underlying policies of   2L1.2(b)(2) remove            any possible  ambiguity created  by the  alleged inconsistent            use   of  the  term  "deportation"  in  the  Immigration  and            Nationality Act.  Therefore, the rule of lenity does not come            into play.                      Appellant's  sentence is summarily affirmed. See Loc. R.                                          _________ ________  ___            27.1.                                         -5-
