United States v. Javier Mejias

Opinion

USCA1 Opinion

May 1, 1995           [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 94-1057

                                    UNITED STATES,

                                      Appellee,

                                          v.

                               FRANCISCO JAVIER MEJIAS,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Olga M. Shepard on brief for appellant.
            _______________
            Guillermo Gil, United States Attorney, and Jeanette Mercado  Rios,
            _____________                              ______________________
        Assistant  United  States  Attorney,  on  Motion   Requesting  Summary
        Disposition for appellee.

____________________

____________________



Per Curiam.    Francisco Javier  Mejias appeals his
                      __________

            conviction and  sentence for illegal reentry  into the United

            States after  deportation subsequent to  an aggravated felony

            conviction, 8 U.S.C.   1326(b)(2).  We affirm.

                                    I. Background
                                       __________

                      According  to  the  Pre-Sentence   Report  ("PSR"),

            Mejias, a citizen  of the Dominican Republic, was arrested in

            Rhode  Island in August  1992 and pleaded  nolo contendere in

            state court  to the  charge of  conspiring  to violate  Rhode

            Island's Uniform Controlled Substances  Act. R.I. Gen. Laws  

            21-28-1.01, et seg. (1994).   He was sentenced to three years
                        __ ___

            in prison; execution  of the sentence was  suspended.  Mejias

            was  deported  from New  York  to the  Dominican  Republic in

            February 1993.   In May 1993,  he arrived in Puerto  Rico and

            was arrested  while attempting  to reenter the  United States

            without  having received permission  of the Attorney General.

            Counsel was appointed to represent Mejias.

                      At  a  change of  plea  hearing  before the  United

            States District Court  for the  District of  Puerto Rico,  on

            July 6, 1993, Mejias pled  guilty to the single count of  his

            indictment,  charging  him  with  illegal  reentry  following

            deportation subsequent to conviction for the commission of an

            aggravated  felony, in  violation of  8 U.S.C.    1326(b)(2).

            The PSR calculated a total offense level of 21. Starting with

            a  base offense  level  of 8,  the PSR  added  16 levels  for



Mejias' prior conviction for an aggravated felony pursuant to

            the  United  States  Sentencing  Guidelines   ("U.S.S.G.")   

            2L1.2(b)(2).    Three  levels  were  subtracted  for  Mejias'

            acceptance of responsibility.   Based upon a criminal history

            category of  II and  a total  offense level  of  21, the  PSR

            arrived at a guideline  sentencing range of 41 to  51 months.

            There were no objections to the PSR.

                      Prior  to  sentencing,  Mejias  filed a  motion  to

            dismiss the indictment.  He argued that his prosecution under

            8  U.S.C.    1326(b)(2) violated  the Constitution's  ex post
                                                                  __ ____

            facto clause.   He asserted that he had been  informed at the
            _____

            time of  his deportation  that the  maximum penalty  he could

            receive for  illegal reentry  was  two years.   The  district

            court denied the motion and  sentenced Mejias on December 13,

            1994, to a  prison term of  41 months.   Mejias appealed  and

            counsel was appointed to represent him on appeal.

                      Appellate counsel filed a brief in accordance  with

            Anders  v. California,  386 U.S.  738 (1967), in  July, 1994.
            ______     __________

            The government moved for summary dismissal of the appeal.  In

            an  order  dated October  14,  1994,  this  court denied  the

            government's  motion  to  dismiss  and  counsel's  motion  to

            withdraw, without prejudice to re-filing of the motions after

            counsel obtained and  reviewed a transcript of  the change of

            plea  hearing.    Counsel  has  obtained  and  reviewed  that

            transcript and,  finding  no  error in  the  change  of  plea

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proceedings, has filed a supplemental Anders  brief and a new
                                                  ______

            motion  to withdraw.  The  government has filed  a new motion

            for summary dismissal.

                                    II. Discussion
                                        __________

                      The Anders brief identifies two grounds for appeal:
                          ______

            1) the ex  post facto  argument raised by  Mejias' motion  to
                   __  ____ _____

            dismiss his indictment  and 2) the argument that the district

            court erred in  adding 16  levels to the  base offense  level

            because  Mejias' prior  conviction  was not   an  "aggravated

            felony,"  within the meaning of U.S.S.G.   2L1.2(b)(2).   For

            the reasons that  follow, we agree with Mejias'  counsel that

            both arguments are frivolous.

                      A. Violation of Ex Post Facto Clause.
                         _________________________________

                      The Constitution's  ex post  facto clause  bars the
                                          __ ____  _____

            retrospective   application   of    laws   that    materially

            disadvantage  a defendant.     Section  1326(b)(2) went  into

            effect in  November,  1988.   Mejias  was deported  in  1993.

            Therefore, the  application of    1326 (b)(2) to  his conduct

            was  not "retrospective" and the ex post facto clause was not
                                             __ ____ _____

            violated.   See United States  v. Troncoso, 23  F.3d 612, 615
                        ___ _____________     ________

            (1st  Cir. 1994),  (rejecting  ex post  facto argument  where
                                           __ ____  _____

            appellant   "failed   to   demonstrate   that  the   law   is

            'retrospective,  that is  it must  apply to  events occurring

            before its enactment.'"), cert. denied, ___ U.S ___, 115 S.Ct
                                      ____  ______

            912 (1995).

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Nor is there any support in  the record for Mejias'

            argument that  the court  is estopped from  sentencing Mejias

            beyond two years based upon representations by the INS at the

            time of  his deportation.  The record  includes a copy of the

            INS Form  I-294 that was given  to Mejias at the  time of his

            deportation  and signed  by him.   The  form states  that the

            maximum sentence is  fifteen years for illegal re-entry by an

            alien whose  deportation was subsequent to  conviction for an

            aggravated felony.   Mejias does not contest that he received

            the I-294  Form signed by  him.  Therefore,  as there was  no

            government  misrepresentation, Mejias has failed to satisfy a

            threshold element of  the estoppel doctrine.   See  Troncoso,
                                                           ___  ________

            23 F.3d  at 615.  Moreover,  even if the  INS had misinformed

            Mejias of the maximum penalty  for illegal reentry, the court

            would  not be estopped from  sentencing him in  excess of two

            years  for  his  purposeful  felonious  conduct in  illegally

            reentering  the country.  See   id at  616; United  States v.
                                      ___   __          ______________

            Smith,  14  F.3d  662,  666  (1st  Cir.  1994)  (government's
            _____

            misrepresentation  regarding maximum sentence did not justify

            downward departure).

                      B. Aggravated Felony Conviction
                         ____________________________

                      In view of  the complete lack  of factual or  legal

            support for Mejias' ex post facto argument, appellate counsel
                                __ ____ _____

            identified   the  following   alternative   argument:     the

            sentencing court erred in  applying a 16-level enhancement to

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his offense  level under U.S.S.G.    2L1.2(b)(2), because the

            state  conviction  that  triggered  the  enhancement  is  not

            specifically classified in the  state record as an aggravated

            felony.  This issue was not raised before the district court.

                      The  "Judgment of  Conviction and  Commitment" from

            the Rhode  Island Superior  Court indicates only  that Mejias

            was  convicted  of  conspiracy   to  violate  the  Controlled

            Substances  Act.  No specific section of the Rhode Island Act

            is cited.     From  the  PSR,  however, it  is  evident  that

            possession of cocaine with intent to  distribute was at least

            one aspect  of  the  charge  to  which  Mejias  pleaded  nolo

            contendere.

                      This  court  recently  outlined  the  criteria  for

            classifying a prior conviction  as an "aggravated felony" for

            purposes of U.S.S.G.   2L1.2, as follows:

                           "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 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

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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).

            United  States v. Forbes, 16 F.3d 1294, 1301 (1st Cir. 1994).
            ______________    ______

                      Mejias' state conviction meets both criteria.  Even

            simple possession  of drugs  is punishable under  the federal

            Controlled Substance Act. See  21 U.S.C.   844(a).   A felony
                                      ___

            is defined under 21 U.S.C.   802(13) as "any Federal or State

            offense classified  by applicable Federal  or State Law  as a

            felony."   Under  Rhode Law,  an offense is  a felony  if the

            maximum authorized  term of  imprisonment  exceeds one  year.

            See R.I.  Gen. Laws    11-1-2 (1994).   The  maximum term  of
            ___

            imprisonment authorized for conspiracy to possess with intent

            to deliver cocaine  exceeds one year under  Rhode Island law.

            See R.I. Gen. Laws    21-28-4.01(A)(2)(a) and 21-28-4.08 
            ___

            (1994).  Therefore, Mejias' conviction is a felony punishable

            by one of the  enumerated statutes in 18 U.S.C.    924(c)(2),

            and it  qualifies as  an aggravated  felony  for purposes  of

            U.S.S.G.   2L1.2.

                      We  conclude  that  counsel,  having  obtained  and

            reviewed the transcript from the  change of plea hearing, has

            fully complied with her obligation under Anders to review the
                                                     ______

            entire record for any arguable claim.  In accordance with our

            obligation  under  Anders, we  too  have  fully examined  the
                               ______

            record.  We conclude that the appeal is wholly frivolous and,

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accordingly,   we   grant  counsel's   motion   to  withdraw.

            Appellant's conviction  and sentence are affirmed.   See Loc.
                                                     ________    ___

            R. 27.1.

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