
USCA1 Opinion

	




          June 20, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No.  93-2235                                     UNITED STATES,                                      Appellee,                                          v.                                   LOUIS S. SIMON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Louis S. Simon on brief pro se.            ______________            Edwin J. Gale,  United States  Attorney, and  Margaret E.  Curran,            _____________                                 ___________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.  In this  28 U.S.C.    2255 petition, Louis                 ___________            Simon  advances  two challenges  to  the  calculation of  his            sentence under  the Sentencing Guidelines.   Specifically, he            alleges that a two-level enhancement under   2C1.1(b)(1) (for            committing  an  offense involving  "more  than  one bribe  or            extortion") and  a three-level  enhancement under    3B1.1(b)            (for being a  "manager or leader"  of criminal activity  that            "involved  five  or   more  participants  or  was   otherwise            extensive")  were each  imposed in  violation of the  Ex Post            Facto  Clause.   Assuming  arguendo  that  petitioner is  not                                       ________            precluded from raising these issues in light of his waiver of            the  right  to appeal  in his  plea  agreement, we  find each            contention without merit.                 The  latter argument  is  expressly  foreclosed by  this            court's decision  in United States v.  Ruiz-Batista, 956 F.2d                                 _____________     ____________            351  (1st Cir.),  cert. denied,  113 S.  Ct. 105 (1992).   We                              ____________            there held that, because the pre-1990 Introductory Commentary            to Chapter 3, Part B could be deemed ambiguous, Amendment 345            served  to  clarify this  passage  and so  could  properly be            applied to offenses  occurring prior to November 1990.   See,                                                                     ___            e.g.,  Isabel v.  United States,  980 F.2d  60, 62  (1st Cir.            ____   ______     _____________            1992)   ("clarifications"  of   Guidelines  may   be  applied            retroactively; "substantive changes" may not).                 The former argument is likewise unavailing.  Contrary to            petitioner's premise, the  district court was  entitled under            the 1989  Guidelines to  consider "relevant conduct"  under              1B1.3  for purposes  of  determining whether  "more than  one            bribe  or extortion" had occurred.1  At all relevant times,              1B1.3(a)  provided that, unless otherwise specified, specific            offense  characteristics (of which  the two-level enhancement            here  is  one) were  to  be determined  on the  basis  of the            following:                 solely with respect to  offenses of a character for                 which   3D1.2(d) would require grouping of multiple                 counts, all such acts  and omissions that were part                 of the same  course of conduct or  common scheme or                 plan as the offense of conviction.                1B1.3(a)(2).     The   district   court  determined   that            petitioner's  other  extortionate  episodes  satisfied  these            criteria; petitioner has  not disputed this  finding.  As  of            1989,2  extortion (a    2C1.1  offense) was  included in  the            list of offenses subject to grouping.  And Application Note 2            to   1B1.3, as  it existed in 1989, specifically  stated that            subsection  (a)(2) "applies  to offenses  of types  for which            convictions  on  multiple counts  would  be grouped  together            pursuant  to     3D1.2(d);   multiple  convictions  are   not                                         ________________________________            required."  (Emphasis  added).  The 1990 and  1991 amendments            _________                                            ____________________            1.  Although  the  words  "or  extortion"  were  added  to               2C1.1(b)(1) only after petitioner's extortionate  conduct had            been committed,  see U.S.S.G., App. C, Amend.  367 (1991), he                             ___            has raised  no argument that this  provision is inapplicable.            We therefore do  not address  the issue, other  than to  note            that one court has applied Amendment  367 retroactively.  See                                                                      ___            United States v. Loftus, 992 F.2d 793, 799 (8th Cir. 1993).             _____________    ______            2.  See U.S.S.G., App. C., Amend. 121 (1989).                 ___                                         -3-            to Note  2, upon  which petitioner apparently  relies, served            only to  reinforce this  interpretation.  See  U.S.S.G., App.                                                      ___            C.,  Amends.  309 &  389.   For  these reasons,  the district            court's consideration  of relevant  conduct  for purposes  of            applying the    2C1.1(b)(1) enhancement entailed no violation            of the Ex Post Facto Clause.                 Affirmed.                 _________                                         -4-
