USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 95-1660
UNITED STATES OF AMERICA,
Appellee,
v.
AUGUSTO DEJESUS RESTREPO-AGUILAR,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Rosenn, Senior Circuit Judge,*
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and Lynch, Circuit Judge.
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Robert D. Watt, Jr., for appellant.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Sheldon Whitehouse, United States Attorney, and Craig N. Moore,
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Assistant United States Attorney, were on brief, for the United
States.
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January 30, 1996
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*Of the Third Circuit, sitting by designation.
LYNCH, Circuit Judge. Augusto Restrepo-Aguilar pleaded
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guilty to a charge of unlawful reentry into the United States
after deportation. At sentencing, the district court added
16 offense levels under U.S.S.G. 2L1.2(b)(2) to Restrepo-
Aguilar's Guidelines sentence, based on a finding that he had
been previously "deported after a conviction for an
aggravated felony." The sole issue presented is whether the
term "aggravated felony" as used in 2L1.2(b)(2) of the
Guidelines includes as a "felony" a state drug possession
offense that would be only a misdemeanor under federal law,
but is a felony under the laws of the convicting state. This
question under the Guidelines is one of first impression in
this Circuit, and we answer it in the affirmative. We hold
that the district court was required to increase the
defendant's Guidelines sentence by 16 offense levels, and so
affirm.
I
In 1985, Restrepo-Aguilar, a citizen of Colombia, was
arrested by Rhode Island authorities on a charge of violating
the state's drug laws. After cooperating with the state in
obtaining the arrests of others, he pleaded nolo contendere
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to an amended charge of simple cocaine possession, a felony
under Rhode Island law, punishable by a maximum of three
years in prison. He was sentenced to 2 years of probation.
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In December of 1988, a federal deportation warrant
issued for Restrepo-Aguilar's arrest. He was finally
apprehended on July 7, 1994, in Miami, Florida and was
subsequently deported. In January of 1995, he resurfaced
illegally in Providence, Rhode Island, where he was arrested
by Immigration and Naturalization Service agents. He
admitted that he had never applied for permission to reenter
the country. He was indicted and pleaded guilty to one count
of unlawful reentry into the United States after deportation,
in violation of 8 U.S.C. 1326.
The defendant was sentenced under 2L1.2 of the
Sentencing Guidelines.1 That guideline sets a base offense
level ("BOL") of 8 for a conviction of unlawfully entering or
remaining in the United States. The guideline then provides:
"If the defendant previously was deported after a conviction
for an aggravated felony, increase by 16 levels." U.S.S.G.
2L1.2(b)(2) (Nov. 1994).2
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1. Defendant was sentenced in June 1995, under the November
1994 edition of the Guidelines. All citations are to that
edition.
2. Section 2L1.2(b) implements the statutory sentence
enhancement provisions of 8 U.S.C. 1326(b), which increases
the maximum authorized term of imprisonment for aliens
convicted under that statute who previously have been
deported following a conviction for a felony or an aggravated
felony. See United States v. Forbes, 16 F.3d 1294, 1300 n.9
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(1st Cir. 1994). The term "aggravated felony" as used in
1326(b)(2) is defined at 8 U.S.C. 1101(a)(43). That
definition is substantially the same (in relevant part) as
the one that appears in application note 7 to U.S.S.G.
2L1.2.
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The sentencing court concluded that the defendant's pre-
deportation state conviction for possession of cocaine, a
felony under Rhode Island law, qualified as an "aggravated
felony" within the meaning of 2L1.2(b)(2), and accordingly
increased defendant's BOL from 8 to 24. With a three-level
reduction for acceptance of responsibility under U.S.S.G.
3E1.1, and a criminal history category of II, defendant's
Guidelines sentencing range was 41-51 months.3 The court
imposed a final sentence of 41 months.
Restrepo-Aguilar contends that because a first-time
conviction for simple possession of cocaine is punishable
only as a misdemeanor under federal law,4 his 1985 state
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conviction for cocaine possession cannot be classified as an
"aggravated felony" for purposes of the Sentencing
Guidelines. The government argues that an offense need not
be punishable as a felony under federal law in order to be an
"aggravated felony" under 2L1.2(b)(2) so long as the
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3. In contrast, the defendant's total offense level,
adjusted for a two-level credit for acceptance of
responsibility under U.S.S.G. 3E1.1(a), would have been 6,
corresponding to a Guidelines sentencing range of 1-7 months
(assuming a criminal history category of II), had no
enhancement been applied.
4. Because a conviction under the Controlled Substances Act
for a first offense of simple possession of cocaine is
punishable by no more than one year in prison, see 21 U.S.C.
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844(a), such a conviction would be for a Class A
misdemeanor under the general federal classification scheme,
see 18 U.S.C. 3559(a).
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offense is punishable as a felony under the law of the state
of conviction.
II
The controlling definition of the term "aggravated
felony" is set forth in application note 7 to U.S.S.G.
2L1.2. That commentary provides in relevant part:
"Aggravated felony," as used in subsection (b)(2),
means . . . 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); . . . or any
attempt or conspiracy to commit any such act. The
term "aggravated felony" applies to offenses
described in the previous sentence whether in
violation of federal or state law . . . .
U.S.S.G. 2L1.2, comment. (n.7) (Nov. 1994). Section
924(c)(2) provides, in turn:
[T]he term "drug trafficking crime" means any
felony punishable under the Controlled Substances
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Act (21 U.S.C. 801 et seq.), the Controlled
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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.).
18 U.S.C. 924(c)(2) (emphasis added).
Restrepo-Aguilar contends that his 1985 cocaine
possession offense is excluded from the definition of "drug
trafficking crime" and is not an "aggravated felony" under
2L1.2(b)(2) because it would be classified as a misdemeanor
under federal law.5 The question posed, then, is whether
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5. He also argues more broadly that the offense of simple
possession of cocaine is not an aggravated felony because it
does not fall within the common definition of drug
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first-time cocaine possession, "whether in violation of
federal or state law," U.S.S.G. 2L1.2, comment. (n.7), is
an "aggravated felony" if it is a felony under applicable
state law but is punishable only as a misdemeanor under the
federal Controlled Substances Act ("CSA").
Restrepo-Aguilar bases his argument on a particular
reading of the Guidelines and on the recent decision by the
Board of Immigration Appeals in In Re L-G-, Interim Decision
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3254, 1995 WL 582051 (BIA Sept. 27, 1995), interpreting the
term "aggravated felony" under the immigration laws. He
appropriately concedes that the BIA's decision is flatly
inconsistent with the Second Circuit's opinion in Jenkins v.
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INS, 32 F.3d 11 (2d Cir. 1994), and that there is language in
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various opinions by this Circuit disfavoring his position.
We believe that the text of the relevant provisions
forecloses his argument and that the Second Circuit's reading
is preferable to that of the BIA.
The defendant's interpretation is not consistent with
the definition of "aggravated felony" set forth in the
commentary to 2L1.2. His argument is contrary to the
application note's instruction that the definition is to be
applied to offenses "whether in violation of federal or state
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"trafficking." We reject this contention without further
discussion, as it is clearly foreclosed by the decision of
this court in United States v. Rodriguez, 26 F.3d 4, 6 (1st
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Cir. 1994).
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law." It also contradicts the definition of "felony"
explicitly provided in the CSA, which is referred to in the
application note.
Defendant reads 18 U.S.C. 924(c)(2) as if it defined
"drug trafficking crime" as any offense punishable as a
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felony under the CSA. But that is not how 924(c)(2) is
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written. The statutory definition plainly does not require
that an offense, in order to be a drug trafficking crime, be
subject to a particular magnitude of punishment if prosecuted
under the CSA, as defendant's preferred reading would
suggest. Rather, the definition requires only that the
offense be a "felony punishable" thereunder. Indeed, this
court has expressly interpreted 924(c)(2)'s definition of
"drug trafficking crime" as encompassing two separate
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elements: (1) that the offense be punishable under the
Controlled Substances Act (or one of the other two statutes
identified); and (2) that the offense be a felony. United
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States v. Forbes, 16 F.3d 1294, 1301 (1st Cir. 1994); see
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also United States v. Rodriguez, 26 F.3d 4, 6 (1st Cir.
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1994); Jenkins, 32 F.3d at 14 (following Forbes and Amaral v.
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INS, 977 F.2d 33, 36 n.3 (1st Cir. 1992)). We adhere to this
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established interpretation and reject the defendant's
contrary construction.
Section 924(c)(2)'s definition of "drug trafficking
crime" by its terms includes "any felony" that is
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criminalized under the CSA. The definition does not limit
its application to offenses that would be classified as
felonies if prosecuted under federal law. Furthermore, the
CSA itself defines a felony as "any Federal or State offense
classified by applicable Federal or State law as a felony."
21 U.S.C. 802(13). Under the CSA's unambiguous definition,
a state offense (of the type within the scope of the CSA)
which is classified as a felony under the law of the
convicting state would clearly qualify as a felony for that
definition's purposes, even if the offense could be punished
only as a misdemeanor under federal law. See Forbes, 16 F.3d
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at 1301 n.10; Amaral, 977 F.2d at 36 n.3. As Judge Walker
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has cogently observed,
Section 802(13)'s explicit reliance on state
classifications represents a Congressional choice
to include within the category of 'felony'
offenses under the Controlled Substances Act . . .
those crimes deemed serious enough by states to
warrant felony treatment within their
jurisdictions.
Jenkins, 32 F.3d at 14.
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There is no reason to suppose that either Congress or
the Sentencing Commission, in defining "aggravated felony" by
reference to 18 U.S.C. 924(c)(2), which in turn
specifically relies on the CSA, was unaware of or chose to
dismiss the definition of "felony" provided there. Indeed,
quite the opposite is likely to be true. The CSA's primary
purpose in carving out a class of offenses as felonies is
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precisely the same as Congress' purpose in doing so in 8
U.S.C. 1326(b) and the Sentencing Commission's purpose in
implementing that statute in 2L1.2(b): to establish a
basis for the imposition of sentence enhancements. See,
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e.g., 21 U.S.C. 841(b) (providing increased maximum
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sentence for defendants with a prior felony conviction). The
Commission intended the "aggravated felony" sentence
enhancement to operate harmoniously with the specific
definition given to the term "felony" in the CSA, the very
statute by reference to which "aggravated felony" is
ultimately defined. Cf. Greenwood Trust Co. v. Commonwealth
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of Mass., 971 F.2d 818, 827 (1st Cir. 1992) (when a statute
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borrows language from another statute, the two statutes
should be read consistently), cert. denied, 113 S. Ct. 974
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(1993).
We hold that a state drug offense is properly deemed a
"felony" within the meaning of 18 U.S.C. 924(c)(2) as
incorporated by application note 7 to U.S.S.G. 2L1.2, if
the offense is classified as a felony under the law of the
relevant state, even if the same offense would be punishable
only as a misdemeanor under federal law. See 21 U.S.C.
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802(13). In Rhode Island, a first offense of simple
possession of cocaine carries a maximum term of imprisonment
of three years, see R.I. Gen. Laws 21-28-4.01(C)(1)(a), and
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is therefore a felony under the laws of that jurisdiction.
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See R.I. Gen. Laws 11-1-2 (defining "felony" as an offense
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punishable by a term of imprisonment exceeding one year); cf.
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18 U.S.C. 3559(a) (categorizing as felonies all offenses
not otherwise classified by the statutes defining the
offenses that are punishable by prison terms exceeding one
year). Restrepo-Aguilar's 1985 cocaine possession offense
was thus a felony under Rhode Island law and qualifies as
"any felony" within the meaning of 18 U.S.C. 924(c)(2).
Since that offense is also punishable under the CSA, see 21
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U.S.C. 844(a), it qualifies as a "drug trafficking crime"
under 924(c)(2) and hence as an "aggravated felony" for
purposes of U.S.S.G. 2L1.2(b)(2).
Beyond purely textual considerations, this result is
most consistent with the approach favored by the Sentencing
Guidelines. In measuring the seriousness of a defendant's
criminal record, the Guidelines operate on the foundational
premise that a defendant's history of criminal activity in
violation of state law is to be treated on a par with his
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history of crimes committed in violation of federal law. To
this end, the commentary to the Guidelines' central criminal
history provision states: "[p]rior convictions [that are
relevant to a defendant's criminal history category] may
represent convictions in the federal system, fifty state
systems, the District of Columbia, territories, and foreign,
tribal, and military courts." U.S.S.G. 4A1.1, comment.
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(backg'd). This principle that criminal history cannot be
viewed through a purely federal lens is also reflected in the
commentary to the "aggravated felony" enhancement at issue
here which at bottom is nothing more than a criminal
history adjustment, albeit a severe one, for prior offenses
of a particular kind. U.S.S.G. 2L1.2, comment. (n.7)
(directing that the enhancement be applied to prior offenses
of the relevant sort "whether in violation of federal or
state law").
The Sentencing Commission fully recognized that the
seriousness of any particular state offense in a defendant's
record might be viewed differently across jurisdictional
lines. To the objection that the result reached today could
mean variations in federal criminal sentences for illegal
aliens based on whether the 50 states classify offenses as
felonies or not, the response is that any such lack of
uniformity is the consequence of a deliberate policy choice
by Congress and the Commission that we cannot disregard.
See, e.g., U.S.S.G. 4A1.2(o) (defining "felony offense" by
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reference to penalty authorized by federal or state law, such
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that determination whether offense is felony could vary from
state to state); 4B1.2, comment. (n.3) (same); cf. Jenkins,
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32 F.3d at 14.
Our result is also consistent with other provisions in
the Sentencing Guidelines that use the term "felony." The
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offense of cocaine possession is punishable in Rhode Island
by a term of imprisonment of up to three years. See R.I.
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Gen. Laws 21-28-4.01(C)(1)(a). Even apart from the
unambiguous definition of "felony" provided in the CSA, see
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21 U.S.C. 802(13), categorizing defendant's 1985 possession
offense as a felony is fully consistent with the definition
of that term that pervades the criminal history and prior
offense enhancement provisions scattered throughout the
Guidelines: any federal or state offense punishable under
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applicable law by a term of imprisonment of more than one
year. See U.S.S.G. 4A1.2(o); see also U.S.S.G. 2D1.1,
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comment. (n.16(a)), 2K1.3, comment. (n.4), 2K2.1, comment.
(n.5), 4A1.1, comment. (backg'd), and 4B1.2, comment. (n.3);
cf. 18 U.S.C. 3559(a). Nothing in 2L1.2(b)(2), the
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accompanying commentary, or the related statutes requires us
to adhere to a different understanding of "felony" here.
The recent decision of the Board of Immigration Appeals
in In Re L-G-, Interim Decision 3254, 1995 WL 582051 (BIA
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Sept. 27, 1995), does not persuade us otherwise. The
decision in L-G- did not involve any consideration of the
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aggravated felony sentence enhancement at issue here.6 At
stake in L-G- was, instead, the petitioner's right to apply
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6. This court's decision in Amaral v. INS, 977 F.2d 33 (1st
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Cir. 1992) and the Second Circuit's decision in Jenkins
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both of which, in any event, support our holding here could
be distinguished on this same ground.
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for asylum and request withholding of deportation under 8
U.S.C. 1158 & 1253(h). To be sure, the decision turned on
the definition of "aggravated felony" as set forth in 8
U.S.C. 1101(a)(43), which, in relevant part, is the same as
the definition provided in application note 7 to U.S.S.G.
2L1.2, but the relevant context was different. The BIA's
decision rested to a significant degree on policy concerns
relating to the consequences flowing from a deportation
decision or a decision on an application for asylum,7
without regard to any of the policies that inform the meaning
of "aggravated felony" in the context of the statutory prior
offense enhancement or its implementation in the Sentencing
Guidelines.8 That the BIA was persuaded by some of the
policies undergirding deportation and asylum determinations
to interpret "aggravated felony" as excluding state-
classified felonies punishable only as misdemeanors under
federal law does not convince us that Congress, in creating
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7. See, e.g., L-G-, slip op. at 20 (stating concern that
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alien found to have been convicted of aggravated felony might
be "barred by [the immigration statutes] from receiving
withholding of deportation, even if he faced imminent harm or
death due to persecution in his native country").
8. One of the reasons given by the BIA for disregarding the
definition of "felony" provided in the CSA is that "the term
'felony' is primarily used in 21 U.S.C. 802(13) to trigger
statutory sentence enhancement for repeat offenders," L-G-,
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slip op. at 16, rather than "to describe offenses that are
punishable under its provisions." This distinction weighs in
favor of, not against, the use of the CSA's definition in
applying the sentence enhancement provision of U.S.S.G.
2L1.2(b)(2).
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the aggravated felony sentence enhancement, or the Sentencing
Commission, in implementing it, intended the same result.9
We decline to adopt the BIA's reasoning here.10
III
Because the cocaine possession offense for which
defendant Restrepo-Aguilar was convicted in 1985 under the
laws of Rhode Island counts as "any felony" in the requisite
sense and is criminalized by the Controlled Substances Act,
that offense is a "felony punishable under the Controlled
Substances Act" and thus falls within the definition of "drug
trafficking crime" set forth in 18 U.S.C. 924(c)(2), as
adopted in U.S.S.G. 2L1.2, comment. (n.7). Accordingly,
that offense qualifies as an "aggravated felony" for purposes
of 2L1.2(b)(2), and the district court correctly enhanced
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9. Moreover, the BIA's analysis suffers from one of the same
difficulties that lead us to reject the defendant's argument
here. The BIA reads 18 U.S.C. 924(c)(2) as if that statute
required an offense to be punishable as a felony under the
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Controlled Substances Act in order to be a "drug trafficking
crime." Indeed, the BIA at several places in its decision
paraphrases 924(c)(2)'s definition in just that way. L-G-,
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slip op. at 7, 9, 11, 13, 22-23. This alteration of the
statute's actual syntax is more than merely cosmetic, and
indeed is substantively inconsistent with the construction of
924(c)(2) given in Rodriguez, 26 F.3d at 6; Forbes, 16 F.3d
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at 1301; and Amaral, 977 F.2d at 35.
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10. Because we are not bound by the BIA's L-G- decision in
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any sense, we need not decide whether the term "aggravated
felony" could, in principle, bear a different interpretation
for purposes of sentence enhancement under 8 U.S.C. 1326(b)
and the Guidelines, than for purposes of the statutory
provisions concerning asylum and withholding of deportation,
8 U.S.C. 1158 & 1253(h).
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defendant's base offense level by 16 levels pursuant to that
guideline.11
Affirmed.
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11. Of course, if we are wrong, the Commission can correct
us by amending 2L1.2(b)(2) or the accompanying commentary.
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