
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1473                                    UNITED STATES,                                      Appellee,                                          v.                                  MICHAEL P. FOSHER,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               George F.  Gormley, by appointment  of the court,  with whom               __________________          John D. Colucci  and Gormley  & Colucci, P.C.  were on  brief for          _______________      ________________________          appellant.               Alexandra Leake, Assistant United States Attorney, with whom               _______________          Donald  K.  Stern,  United  States  Attorney,  was on  brief  for          _________________          appellee.                                 ____________________                                   August 27, 1997                                 ____________________                    TORRUELLA,  Chief Judge.   On July 6,  1995, Defendant-                    TORRUELLA,  Chief Judge.                                ___________          Appellant Michael P. Fosher ("Fosher") pled guilty to four counts          of an indictment, which charged him with racketeering conspiracy,          in violation of 18 U.S.C.    1962(d), racketeering, in  violation          of  18  U.S.C.    1962(c),  interstate  transportation  of stolen          property, in  violation of 18  U.S.C.   2314, and  conspiracy, in          violation of  18 U.S.C.   371.  On  March 5, 1996, the sentencing          court  imposed  upward  adjustments for  an  unusually vulnerable          victim and for Fosher's  role in the offense.   The court further          determined  that Fosher's armed bank robbery conviction under the          Federal Youth Corrections Act, 18 U.S.C.   5005 et seq. ("FYCA"),                                                          _______          previously set aside  pursuant to that Act, was properly included          in the Criminal History Category calculation.  The district court          calculated Fosher's  Total Offense Level  at 33 and  his Criminal          History  Category at  III, resulting  in  a guideline  sentencing          range of 168  to 210 months.   The government requested that,  in          light  of  Fosher's  substantial assistance,  the  court  grant a          downward departure under   5K1.1  and impose a 60 month sentence.          The court granted the government's downward departure motion, and          sentenced Fosher to 78 months' imprisonment.  Fosher  appeals his          sentence, arguing that  the district court  erred in its  rulings          regarding  the unusually vulnerable  victim and  the role  in the          offense  adjustments,  as  well  as  its  inclusion  in  Fosher's          Criminal History Category  of his set-aside conviction  under the          FYCA.  For the reasons set forth herein, we reverse and remand in          part and affirm in part.                                         -2-                                      BACKGROUND                                      BACKGROUND                    In  presenting the  facts, we  consult the  uncontested          portions  of  the  Presentence  Report ("PSR"),  as  well  as the          sentencing hearing transcript.  United States v. Lagasse, 87 F.3d                                          _____________    _______          18, 20 (1st Cir. 1996).                    In December 1991, Fosher called Michael Chinn ("Chinn")          from Florida and told Chinn that he would  pay Chinn's airfare to          Florida so  that they could  do "something big."   Chinn flew  to          Fort  Lauderdale with  Anthony  Corso  ("Corso").    The  airline          tickets for  both were  purchased by Fosher.   Chinn  stayed with          Fosher, while Corso  stayed with his father, Philip  Corso.  Upon          arrival  in Fort  Lauderdale, Chinn  and  Corso were  taken by  a          friend of Philip  Corso to a  restaurant to meet  Fosher and  Joe          Bomengo  ("Bomengo").   During  lunch, Fosher  told them  about a          house he had targeted  for a home invasion.  Donald  Marks Schoff          ("Schoff") had told  Fosher that the house  contained $500,000 in          gold coins and a five carat diamond ring and was occupied by a 62          year old  woman, her daughter  and granddaughter.   Fosher stated          that he  wanted Chinn  and Corso  to  enter the  house, while  he          waited outside  in a  van and  Schoff waited  at the  end of  the          street listening to a police  scanner.  They also discussed using          weapons  and   Fosher  unsuccessfully  sought  weapons   from  an          acquaintance he ran into in the restaurant.                    Thereafter, Fosher,  Chinn, Corso, Bomengo,  and Schoff          met Philip  Corso at Corso's  house.  Schoff described  where the                                         -3-          money was kept.  The  participants looked at some guns  at Philip          Corso's  house and  wanted  to  borrow the  guns.   Philip  Corso          declined to let  the group use  the guns because  the guns  "were          hardly needed  since the  victim was  an older  woman."   At  the          meeting,  Bomengo suggested that the participants pose as florist          delivery  men.   Fosher determined  that  he would  rent a  white          minivan to  resemble  a  florist  delivery  truck.    During  the          discussion,  Fosher  made  decisions and  assigned  roles  to the          participants.                    On  the  morning  of January  8,  1992,  Fosher, Chinn,          Corso, and Schoff executed the home invasion.  Fosher, Chinn, and          Corso  drove to  the  victim's  house in  the  van, while  Schoff          followed in a second car.  On the way to the victim's house, they          purchased a floral arrangement and  gloves and "ties" to bind the          victims.    Corso and  Chinn  went  to the  front  door with  the          flowers.  When the victim came to the door, they entered.   Corso          asked her  for  the keys  to the  floor safe  in  the garage  and          attempted to open it.   Fosher and Schoff  entered the garage  to          help him.   Upon opening the safe, they  discovered only $500,000          worth  of gold coins.   They approached the  victim and asked her          where the other safe  and the five carat diamond ring  were.  The          men  took the  victim to  her  jewelry lockbox  and took  jewelry          valued at $23,000.   When they were  unable to find a  five carat          diamond, Fosher told Chinn, within the hearing of the victim, "if          she doesn't tell you where the other safe is, shoot her."   Chinn          told the victim that he would not let them hurt her.                                         -4-                    When they  left the  victim's house,  the four  went to          Fosher's condominium, where they divided the coins.   Fosher made          Corso throw away the jewelry for fear that it might allow someone          to  identify them.   Corso left  Florida soon  thereafter, taking          $80,000 in coins with him  to Massachusetts.  Chinn also returned          to  Massachusetts, carrying cash  received from Fosher  after the          coins had been melted down.                    On May 11,  1995, a federal grand jury  returned a five          count indictment against Fosher and Corso.  On  June  27,   1995,          Fosher executed a plea and  cooperation agreement with the United          States Attorney's Office, agreeing to plead guilty to four counts          of the indictment.1   The agreement provided that, at sentencing,          the  government would take  the position under  the United States          Sentencing Guidelines  ("U.S.S.G.") that  Fosher's offense  level          was 33, for which the guideline  sentencing range was 135 to  168          months.   The  agreement  noted  that  Fosher  objected  to  this          calculation and reserved  the right to argue for  a lower offense          level.    Fosher agreed  to  cooperate with  the  government and,          assuming  he provided substantial  assistance, the  U.S. Attorney          agreed to file a motion for a two level downward adjustment under          U.S.S.G.   5K1.1.                    On July  6,  1995, Fosher  pled  guilty to  Counts  One          through  Four.   At his  March 5,  1996, sentencing  hearing, the          probation department presented  its PSR, in which  the department                                        ____________________          1   The United States  Attorney's Office agreed to  dismissed the          fifth count.                                         -5-          concluded  that the  four  counts  constituted  seven  groups  of          offenses.    The  probation department  calculated  the  Adjusted          Offense Level  for  each  group and  determined  that  the  group          relating to  an  invasion and  robbery,  executed by  Fosher  and          others, of the  home of a 62  year old Fort Lauderdale  woman had          the highest Adjusted  Offense Level at 33.   This included a two-          level  upward adjustment for an unusually vulnerable victim under          U.S.S.G.   3A1.12 and a four-level  upward adjustment for being a          leader or organizer of five or more participants under U.S.S.G.            3B1.1.3  After applying the grouping rules under U.S.S.G.   3D1.4          and  providing  for  a  downward  adjustment  for  acceptance  of          responsibility, the probation department  concluded that Fosher's          Total Offense Level was 33.                    The  probation   department  concluded   that  Fosher's          Criminal History Category was III, including in the calculation a          conviction for armed bank robbery under the FYCA.                                        ____________________          2  Section 3A1.1(b) provides in relevant part:                    If the  defendant knew  or should  have known                    that a  victim of the  offense was  unusually                    vulnerable  due to  age,  physical or  mental                    condition, . . . increase by 2 levels.          3  Section 3B1.1(a) provides in relevant part:                    Based on the defendant's role in the offense,                    increase the offense level as follows:                    (a)  If the  defendant was  an organizer                         or  leader of  a criminal  activity                         that   involved   five    or   more                         participants   or   was   otherwise                         extensive, increase by 4 levels.                                         -6-                    On  February 26, 1996,  Fosher filed objections  to the          upward adjustments  in calculation of  the offense level  for the          Fort Lauderdale  home invasion and  to the inclusion of  his FYCA          conviction  in the  Criminal History  Category  calculation.   He          argued that  the FYCA conviction should not be considered because          it  had been "set  aside" pursuant to  the FYCA on  September 24,          1982.                    At the  sentencing hearing,  the district court  agreed          with the findings  in the PSR and imposed  upward adjustments for          an  unusually vulnerable  victim  and for  Fosher's  role in  the          offense.    The  court  further  determined  that  Fosher's  FYCA          conviction was properly included in the Criminal History Category          calculation.  The  district court, therefore, set  Fosher's Total          Offense Level  at 33  and his Criminal  History Category  at III,          resulting in a  guideline sentencing range of 168  to 210 months.          The  government submitted a  motion requesting that,  in light of          Fosher's  substantial  assistance,  the court  grant  a  downward          departure and impose a 60-month  sentence.  The court allowed the          government's    5K1.1 downward  departure  motion, but  sentenced          Fosher to 78 months' imprisonment.                                      DISCUSSION                                      DISCUSSION          I.  Unusually vulnerable victim          I.  Unusually vulnerable victim                    The  government insists that  the issue of  whether the          victim  of the  Fort  Lauderdale  home  invasion  was  "unusually          vulnerable" is a factual issue and therefore that the clear error          standard applies.  Fosher argues  vigorously that the facts being                                         -7-          undisputed, the  only question  presented is a  legal one  of the          sentencing  court's application of  the guidelines to  the facts,          requiring de  novo review.    "[Q]uestions .  . .  of the  proper                    ________          application of  a legal  standard to undisputed  facts . .  . are          usually called 'mixed questions' of fact and law."  United States                                                              _____________          v. Wright,  973 F.2d 437, 442  (1st Cir. 1989).  As  our cases in             ______          this   context  amply  demonstrate,  such  issues  of  sentencing          application  are   often  difficult   to  pigeonhole  as   either          predominantly factual  or legal.    See, e.g.,  United States  v.                                              ___  ____   _____________          Newman,  982 F.2d  665, 671  (1st  Cir. 1992);  United States  v.          ______                                          _____________          Pilgrim Market  Corp., 944  F.2d 14, 16  (1st Cir.  1991); United          _____________________                                      ______          States v. Cousens,  942 F.2d 800, 805-07 (1st  Cir. 1991); United          ______    _______                                          ______          States v.  Rule Indus., 878  F.2d 535,  542 n.7 (1st  Cir. 1989).          ______     ___________          Because we  remand the unusually  vulnerable victim issue  to the          district  court  we need  not  decide the  difficult  standard of          review question.                    Section 3A1.1(b) of the Sentencing Guidelines calls for          a two level upward enhancement                    [i]f the defendant knew or should  have known                    that a  victim of  the offense  was unusually                    vulnerable  due to  age,  physical or  mental                    condition,  or that  a  victim was  otherwise                    particularly  susceptible  to   the  criminal                    conduct.          We  have recognized that  this guideline "is  primarily concerned          with the impaired capacity of the victim to detect or prevent the          crime, rather than the quantity  of harm suffered by the victim."          United States v.  Gill, 99 F.3d  484, 486 (1st  Cir. 1996).   The          _____________     ____          question is  whether  "'a particular  victim was  less likely  to                                         -8-          thwart the crime, rather than  more likely to suffer harm  if the          crime is  successful.'"  Id.  (quoting United States v.  Kaye, 23                                   ___           _____________     ____          F.3d 50, 54 (2d Cir. 1994)).                    We have discouraged  sentencing courts  from making  an          "unusually  vulnerable  victim"  finding  based  solely   on  the          victim's membership  in a particular  class.  Id. at  487; United                                                        ___          ______          States v. Feldman, 83 F.3d 9, 15 (1st Cir. 1996) ("[I]n  order to          ______    _______          warrant a  finding of unusual  vulnerability, there must  be some          evidence, above and beyond mere membership in a large class, that          the  victim possessed  a  special  weakness  that  the  defendant          exploited.").  At the same time, we have recognized  that in some          cases   inferences  to  be   drawn  regarding   particular  class          characteristics may be so strong  that "there can be little doubt          about unusual vulnerability  of class members within  the meaning          of  section  3A1.1."   Gill,  99  F.3d at  487.   The  Sentencing                                 ____          Commission recognized this when it  used as an example under this          section the  robbery of  someone confined to  a wheelchair.   See                                                                        ___          U.S.S.G.   3A1.1 comment. n.2; see also Gill, 99 F.3d at 487.                                         ________ ____                    We  are concerned with the application of section 3A1.1          in  the context  of  this case.    The PSR  revealed  that Fosher          surveyed the victim's home and determined that it was occupied by          an  elderly woman,  her  daughter,  and  her  daughter's  infant.          Following this surveillance, the perpetrators declined the use of          weapons to commit the robbery.  Based on the victim's age and the          perpetrators' decision  that  the use  of  weapons would  not  be          necessary,  the  district  court concluded  that  Fosher  knew or                                         -9-          should  have  known that  the  victim  in  this case  would  have          "impaired capacity" to prevent the  entry into and robbery of her          home.  From  our review of  the record, it  appears the  district          court failed to address the "individual characteristics" required          to  support a  finding  that a  particular  victim was  unusually          vulnerable.    Because of  this conclusion,  we must  remand this          issue to the district court for its consideration.                                         -10-          II.  Role in the offense          II.  Role in the offense                    We  review a  district  court's  role  in  the  offense          determinations  for clear error.   See United States v. D'Andrea,                                             ___ _____________    ________          107 F.3d  949, 956 (1st Cir. 1997).   A court making a four-level          role-in-the-offense  adjustment under  U.S.S.G. section  3B1.1(a)          must  first  determine   "whether  the  defendant  acted   as  an          organizer/leader of  a specific  criminal activity.   If so,  the          court  asks  the  separate  question  of  whether  that  criminal          activity  involved  five  or more  participants,  defined  in the          Commentary as  persons who  are 'criminally  responsible for  the          commission of the  offense . . .  .'"  United States  v. Preakos,                                                 _____________     _______          907  F.2d  7, 10  (1st  Cir.  1990)  (quoting U.S.S.G.     3B1.1,          Commentary).  In determining a  defendant's role in the  offense,          the  sentencing   court  need  not  look  only  to  the  elements          underlying the conviction,  but may  consider "the  whole of  the          defendant's relevant conduct."  United States v. Savoie, 985 F.2d                                          _____________    ______          612, 615 (1st  Cir. 1993); see also U.S.S.G. Ch. 3, Pt. B, intro.                                     ________          comment.  Fosher does not challenge the sentencing court's status          determination.   His  argument focuses  on  whether the  district          court  properly found five participants in  the home invasion and          robbery.                    The commentary defines a "participant" as "a person who          is criminally  responsible for the commission of the offense, but          need not  have been convicted."   U.S.S.G.   3B1.1  comment. app.          n.1.  Fosher concedes that there were four criminally responsible          participants:  him, Chinn, Corso,  and Schoff.  At the sentencing                                         -11-          hearing, the government argued that both Philip Corso and Bomengo          were criminally responsible participants even though they did not          actually participate in  the robbery.  We need  only confirm that          one  of them was  a criminally responsible  participant to affirm          the   district  court's  upward   adjustment.     Philip  Corso's          assistance  in devising the perpetrator's scheme is sufficient to          find  that  he  is  a  participant  within  the  meaning  of  the          guidelines.   Philip  Corso  assisted  Schoff  in  targeting  the          victim's home for the commission of this robbery, he provided the          home in which the planning meeting took place, he participated in          the planning meeting with the four robbery perpetrators,  and, in          response to  the perpetrators'  discussion regarding  the use  of          weapons, he  advised  against the  necessity of  weapons to  gain          entry into the victim's home.  Such acts were sufficient  to find          Philip  Corso to  be  a  participant in  the  commission of  this          robbery.  We therefore find no error in the district court's role          in the offense determination.          III.  Criminal History Category          III.  Criminal History Category                    In 1977,  Fosher was  convicted of  armed bank  robbery          under the Federal Youth Corrections Act, 18 U.S.C.   5005 et seq.                                                                    _______          (repealed  1984).  In  1982,  pursuant  to  the  Act's  set-aside          provisions,  see 18  U.S.C.    5021,  Fosher was  unconditionally                       ___          discharged and his conviction  was set aside.  Fosher  challenges          the sentencing court's inclusion of his FYCA set-aside conviction          in the calculation  of his Criminal History Category.   He claims          that his set-aside  conviction is to be treated  as an "expunged"                                         -12-          conviction under  U.S.S.G.   4A1.2.   We have yet  to address the          issue of whether a conviction set  aside under the FYCA should be          counted  under the Sentencing Guidelines.4   When faced with this          issue, a majority  of our sister circuits have ruled that an FYCA          conviction  may properly be included in calculating a defendant's          criminal history, see United States v. Moreno, 94 F.3d 1453 (10th                            ___ _____________    ______          Cir.  1996); United  States v.  Nicolace, 90  F.3d 255  (8th Cir.                       ______________     ________          1996); United  States v. Wacker,  72 F.3d 1453 (10th  Cir. 1996);                 ______________    ______          United  States v.  Levi, 45  F.3d  453 (D.C.  Cir. 1995);  United          ______________     ____                                    ______          States v. Ashburn, 20 F.3d 1336 (5th Cir. 1994); United States v.          ______    _______                                _____________          Gardner,  860 F.2d  1391  (7th  Cir. 1988),  while  only one  has          _______          determined   that  FYCA  convictions   are  similar  to  expunged          convictions  and should not  be considered under  the guidelines,          see United States v. Kammerdiener, 945 F.2d 300 (9th Cir. 1991).5          ___ _____________    ____________                                        ____________________          4   Fosher claims that two  opinions of this circuit  relating to          the  FYCA support his  contention that his  set-aside convictions          may not  be included in  calculating his criminal history.   Both          opinions  are  inapposite,  as  neither  was  decided  under  the          Sentencing Guidelines.   See United States v. Doe,  732 F.2d 229,                                   ___ _____________    ___          232 (1st Cir. 1984)  (ruling that FYCA does  not allow record  of          conviction to  be destroyed  and noting that  the FYCA  set aside          provision "prevents the fact of conviction from being used to the          youth offender's  legal detriment");  Mestre Morera  v. INS,  462                                                _____________     ___          F.2d 1030, 1032  (1st Cir. 1972) (in ruling  that FYCA conviction          may not  be used  to deport petitioner,  finding that  purpose of          FYCA is to give  an offender "a second chance, free  of all taint          of a conviction").          5    Fosher also  cites  opinions  from  two other  circuits  for          support,  but none  of those  opinions ruled that  FYCA set-aside          convictions are not  to be counted under  the guidelines criminal          history provisions.   See United States v. Corrado,  53 F.3d 620,                                ___ _____________    _______          621 n.1 (3d Cir. 1995) (noting that government conceded that FYCA          conviction should not be counted); United States v. Doe, 980 F.2d                                             _____________    ___          876  (3d  Cir. 1992)  (ruling  that FYCA's  set  aside provisions          called  for  the  actual  removal   of  any  records  related  to          conviction); United States v. Beaulieau, 959 F.2d 375, 380-81 (2d                       _____________    _________                                         -13-                    Section 4A1.2(j) provides that expunged convictions are          not to be counted in  determining Criminal History Category.  The          Commentary provides the following:                    A  number   of  jurisdictions   have  various                    procedures   pursuant   to   which   previous                    convictions may be set aside or the defendant                    may  be  pardoned  for reasons  unrelated  to                    innocence or errors of law, e.g., in order to                                                ____                    restore civil rights or  to remove the stigma                    associated   with   a   criminal  conviction.                    Sentences resulting from such convictions are                    to be counted.  However, expunged convictions                    are not to be counted.          U.S.S.G.   4A1.2,  comment app. note 10.   A set-aside  under the          FYCA is  made for  "reasons unrelated to  innocence or  errors of          law"  of the  type  that  the guidelines  contemplate  are to  be          considered  in calculating Criminal  History.  The  FYCA, section          5021, provided:                    (a)  Upon the unconditional  discharge by the                    Commission  of  a  committed  youth  offender                    before the expiration of the maximum sentence                    imposed  upon him,  the  conviction shall  be                    automatically  set aside  and the  Commission                    shall   issue  to   the   youth  offender   a                    certificate to that effect.                    (b)  Where  a youth offender has  been placed                    on probation  by  the court,  the  court  may                    thereafter,      in      its      discretion,                    unconditionally discharge such youth offender                    from probation prior to the expiration of the                    maximum period of probation theretofore fixed                    by   the   court,   which   discharge   shall                    automatically set  aside the  conviction, and                    the court shall issue to the youth offender a                    certificate to that effect.                                        ____________________          Cir. 1992)  (holding that  sealed record  under Vermont  juvenile          statute   was   improperly   considered   in   criminal   history          calculation).                                         -14-          18 U.S.C.    5021 (repealed).   The language of  the statute does          not call  for expunging a  youth offender's records,  but instead          mandates  that the youth offender  shall receive a certificate to          the effect that  the conviction has been set aside.  A conviction          under  the  FYCA is  set  aside  not because  of  legal  error or          innocence, but  because the offender's  "post-offense conduct has          persuaded the court to terminate his sentence of probation before          the assigned  completion date."   United States v.  McDonald, 991                                            _____________     ________          F.2d 866, 871 (D.C. Cir. 1993) (analyzing a set-aside  conviction          under  the  District  of  Columbia's  Youth  Rehabilitation  Act,          analogous to the FYCA).  The  FYCA's use of the term "set  aside"          is not  the  same  as the  Guideline's  treatment  of  "expunged"          convictions,  but is more analogous to the Guideline's definition          of a  "set aside" conviction,  one that is  to be counted  in the          criminal history  calculation.   Moreover, had Congress  intended          that all records of a youthful conviction  under the FYCA be made          completely  unavailable  or  destroyed such  that  they  could no          longer be considered for any future purposes, Congress could have          specified the remedy of expungement  rather than a certificate of          set-aside.  See United States v. Doe, 732 F.2d 229, 232 (1st Cir.                      ___ _____________    ___          1984)  (in affirming  district court's  refusal  to destroy  FYCA          records, noting that ordering expungement under the statute would          require a  rewriting of  the statute); Ashburn,  20 F.3d  at 1342                                                 _______          (collecting cases).                    In  determining  the  import  of  this  provision,  the          Supreme  Court noted  in  dicta  that the  FYCA  was intended  to                                         -15-          address  the   "numerous  civil  and  social  disabilities"  that          accompany a conviction, recognizing that "a conviction may result          in the  loss of the rights to  vote, to hold a  public office, to          serve  on  a  jury,  and  to  practice  various  occupations  and          professions."  Tuten v. United  States, 460 U.S. 660, 664 (1983).                         _____    ______________          Although the FYCA was intended  to benefit a youthful offender by          providing  a second chance to start life  without the stigma of a          criminal conviction, id.  ("Congress' purpose in adopting    5021                               ___          was to promote the rehabilitation of youth offenders by providing          a substantial  incentive for  positive behavior  while serving  a          sentence  under the YCA."); Webster, 606  F.2d at 1234-35 (noting                                      _______          that Congress  "intended to  give youthful  ex-offenders a  fresh          start,  free from  the stain  of  a criminal  conviction, and  an          opportunity to clean their slates to afford them a second chance,          in terms of both jobs and standing in the community"), it was not          meant to allow a recidivist to avoid increased penalties based on          earlier  criminal convictions.    See Ashburn,  20  F.3d at  1343                                            ___ _______          ("[T]his beneficent offer  of a 'second  chance' to the  immature          offender  should not  be available  as a  shield for  those whose          original  encounter  with  the  criminal  world  is  used   as  a          springboard to a life of felonious conduct."); McDonald, 991 F.2d                                                         ________          at 872  ("[I]f a juvenile  offender turns into a  recidivist, the          case for conferring  the benefit dissipates.   Society's stronger          interest is in punishing  appropriately an unrepentant criminal."          (citations  omitted)).     Thus,  counting   an  FYCA   set-aside                                         -16-          conviction in calculating  a defendant's criminal history  is not          contrary to the purposes of the FYCA.                    Fosher further  argues that  consideration of  the FYCA          conviction violates the ex post facto clause, U.S. Const. art. I,                                  _____________            9, cl. 3, because the law increases the punishment for his 1977          armed  robbery conviction.   An ex post  facto law is  one "'that                                          ______________          changes the punishment,  and inflicts a greater  punishment, than          the law  annexed to  the crime, when  committed.'"   Dominique v.                                                               _________          Weld,  73 F.3d  1156, 1162  (1st  Cir. 1996)  (quoting Miller  v.          ____                                                   ______          Florida, 482 U.S. 423, 429 (1987)).  "The 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.'"  United States  v. Forbes, 16                                               _____________     ______          F.3d 1294, 1301 (1st Cir. 1994) (quoting Miller, 482 U.S.  at 430                                                   ______          (1987)).  As  the Supreme Court has recognized,  a state habitual          offender  statute, which  increased  present  penalties based  on          prior criminal conduct, is not an ex post facto law, because  the                                            _____________          consideration of prior convictions imposes increased penalties to          the  "latest  crime, which  is  considered  to be  an  aggravated          offense because  a repetitive  one."  Gryger  v. Burke,  334 U.S.                                                ______     _____          728, 732 (1948), quoted in Forbes, 16 F.3d at 1302.  "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."          Forbes, 16 F.3d  at 1302.  The district  court's consideration of          ______                                         -17-          Fosher's  FYCA  conviction  in determining  his  criminal history          category did not violate the ex post facto clause.                                       _____________                                      CONCLUSION                                      CONCLUSION                    For the  foregoing reasons,  we reverse  and remand  in                                                    reverse      remand                                                    _______      ______          part, and affirm in part.                    affirm                    ______                                         -18-
