United States v. Guevara-Lopez

Opinion

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[NOT FOR PUBLICATION]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).
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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.


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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


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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.


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