United States v. Rodriguez

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1590

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                CARLOS JULIO RODRIGUEZ
                                  aka Jose Ramirez,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Stahl, Circuit Judge. 
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                                 ____________________

            Eileen M. Donoghue, by Appointment of the Court, for appellant.
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            Robert E. Richardson, Assistant United States Attorney, with  whom
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        Donald K. Stern, United States Attorney, was on brief for appellee.
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                                    June 17, 1994
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COFFIN,  Senior  Circuit  Judge.    Carlos  Julio  Rodriguez
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          appeals his sentence  for illegal reentry into  the United States

          after deportation, 8 U.S.C.   1326.  We affirm.

                                I.  Factual Background
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               In April 1991, Rodriguez,  a Colombian citizen, was deported

          from  Boston to  Colombia.   The  following September,  Rodriguez

          reentered the United  States illegally.   On  December 19,  1991,

          agents  from the  Immigration and  Naturalization Service  (INS),

          acting  on  a tip,  found  and arrested  Rodriguez  at  a bar  in

          Chelsea,  Massachusetts.    A  federal  grand  jury  subsequently

          returned  a  one  count  indictment  charging  Rodriguez  with  a

          violation of 8 U.S.C.    1326(a) and (b)(2).1  

               On November 4, 1992, Rodriguez pled guilty to a violation of

          8  U.S.C.     1326(a).2    Rodriguez'  presentence  report  (PSR)

          computed his total offense level at 21: 8 points were assigned as

          the base  offense level  under 8  U.S.C.    1326, 16  points were

          added for his previous conviction for an aggravated felony, and 3
                              
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               1This statute provides, in pertinent part, that:
               (a) [A]ny alien who --
               (1) has been arrested and deported or excluded and deported,
               and thereafter
               (2) enters, attempts to enter, or is at any time found in, 
          the United States . . . [and]
               (b)(2) whose deportation was  subsequent to a conviction for
               commission  of an  aggravated  felony, such  alien shall  be
               fined under such  Title, imprisoned not more  than 15 years,
               or both.

               2At  his  plea  hearing,  the court  accepted  the  parties'
          stipulation to  consider Section  (b)(2) as a  sentencing factor,
          and not as  an element of  the offense.   We have since  affirmed
          this view.  See United States  v. Forbes, 16 F.3d 1294, 1300 (1st
                      ___ _____________     ______
          Cir. 1994) (holding that Section (b)(2) is a sentence enhancement
          factor).

                                         -2-

points  were  subtracted  for acceptance  of  responsibility  and

          timely notifying  authorities of  his intention to  plead guilty.

          See U.S.S.G.     2L1.2(a),  (b)(2); 3E1.1(b)(2).   Taken together
          ___

          with  a  criminal  history  category  of  III,  this  calculation

          resulted  in  a  recommended  sentencing range  of  46-57  months

          imprisonment and 24-36 months supervised release.  

               The district  court accepted the PSR recommendation, finding

          that  Rodriguez' two  convictions for  possession with  intent to

          distribute an illegal drug, in violation of Mass. Gen. L. ch. 94C

            32A, were "aggravated felonies" within the meaning of 

             1326(b)(2).   The  court also  ruled  that Rodriguez'  offense

          occurred when he was found in the United States in December 1991,

          and, therefore, that application  of the November 1991 amendments

          to  the Sentencing Guidelines did  not violate the  ex post facto
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          clause  of the  Constitution.   Accordingly, the  court sentenced

          Rodriguez to 48  months imprisonment,  followed by  24 months  of

          supervised release.  This appeal followed.

               Rodriguez contends  that his Massachusetts'  convictions are

          not "aggravated" felonies within the meaning of federal law,  and

          that  the district court therefore erred by using them to enhance

          his  base offense  level by  16 points.   He also  reiterates his

          claim that the application of the November 1991 Guidelines to his

          conviction  violates the ex post facto clause, and that he should
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          have been sentenced under  the Guidelines in effect in  September

          1991, the date of his reentry into the United States.

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II.  Aggravated Felony Determination
                              _______________________________

               Section 1326(b)(2) provides an enhanced penalty for deported

          aliens  who  illegally   reenter  the  United  States   following

          conviction  for an aggravated felony.  Our cases establish that a

          drug  offense  is  an  aggravated felony  within  the  meaning of

          Section 1326 and the applicable Sentencing Guidelines, U.S.S.G.  

          2L1.2(b)(2), if it is a "drug trafficking crime" as defined in 18

          U.S.C.   924(c)(2).   See United States v. Forbes,  16 F.3d 1294,
                                ___ _____________    ______

          1301 (1st Cir. 1994); Amaral v. I.N.S., 977 F.2d 33, 35 (1st Cir.
                                ______    ______

          1992).  Under  that section, a drug felony is a "drug trafficking

          crime" if it is  punishable under any one of three  statutes: (1)

          the Controlled Substances  Act, 21 U.S.C.   801  et seq.; (2) the

          Controlled Substances Import and  Export Act, 21 U.S.C.    951 et

          seq.;  or  (3) the  Maritime Drug  Law  Enforcement Act,  46 App.

          U.S.C.   1901 et seq.

               Rodriguez  argues   that  his  state  convictions   are  not

          aggravated felonies, and therefore  not subject to enhancement as

          such,  because  they are  not  for  "trafficking" crimes.    This

          argument is meritless.  Rodriguez' Massachusetts convictions  are

          trafficking crimes for purposes of  Section 1326 because they are

          punishable  under the Controlled Substances Act.  See 21 U.S.C.  
                                                            ___

          844(a) (punishing simple possession  of controlled substances).3 

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               3Rodriguez  also  contends  that  his  convictions  are  not
          trafficking crimes  under state  law.   This argument  misses the
          mark.  We have  held that federal, not state,  definitions govern
          under the Guidelines.  United States v. Unger, 915 F.2d 759, 762-
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          63 (1st Cir. 1990);  United States v. Aymelek, 926  F.2d 64, 71-2
                               _____________    _______
          (1st Cir. 1991).  

                                         -4-

See  Forbes, 16  F.3d  1294, 1301  (state possession  convictions
          ___  ______

          which  would  be felonies  under 21  U.S.C.    844(a)  treated as

          aggravated felonies under U.S.S.G.   2L1.2(b)(2)).

               Rodriguez  argues that  this  conclusion  unfairly  converts

          virtually  all predicate  drug  crimes into  aggravated felonies,

          thus  rendering meaningless,  for drug offenses,  the distinction

          under Section 1326 and the applicable Guidelines between felonies

          and  aggravated felonies.   We recognize that  this definition of

          "aggravated felony" may be  rather harsh for drug offenders.   We

          are not at liberty, however, to rewrite the statutory scheme.  

               We therefore conclude that the district court properly added

          16  points to  Rodriguez'  base offense  level  in computing  his

          sentence under the Guidelines. 

                              III.  Ex Post Facto Claim
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               Rodriguez illegally reentered the United States on September

          5,  1991.    At that  time,  the  relevant Sentencing  Guidelines

          provided for a base offense level of 8, a  4-level increase "[i]f

          the   defendant  previously  was   deported  after  sustaining  a

          conviction for a felony,"  U.S.S.G.   2L1.2 (Nov. 1990),  and, if

          the conviction was for an aggravated felony, "an upward departure

          may be warranted."  Id., comment (n.3).
                              ___

               Rodriguez was not found in the United States, however, until

          December 19, 1991.  Between the time of his entry and the time of

          his arrest, the Guidelines  were amended to increase the  penalty

          for a  conviction under  Section 1326 where  deportation followed

          conviction  for an  aggravated  felony.   U.S.S.G.    2L1.2(b)(2)

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(Nov.  1991).   These  amendments,  effective  November 1,  1991,

          converted  the  discretionary  choice  whether  to  increase  the

          penalty  for  this  class  of  defendants  to  a requirement,  by

          instructing  the court  to add  16 points  to the  calculation of

          their total offense level.  Id.
                                      ___

               Rodriguez   argues  that  the  district  court  should  have

          sentenced  him  under the  Guidelines in  effect on  September 5,

          1991, the date he entered the United States, because that is when

          he violated  Section 1326.   The district court's  application of

          the November 1991 Guidelines violates the ex post facto clause of
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          the Constitution, he claims,  because the amendments increase the

          sentence applicable at the time he committed the crime.

               The government counters that 8 U.S.C.   1326(a)(2) describes

          three  separate occasions on which a deported alien can commit an

          offense  under the statute: when  he or she  (1) illegally enters

          the United States;  (2) attempts  illegally to  enter the  United

          States;  or (3) is  found in the  United States.   They point out

          that the indictment explicitly  charged Rodriguez, and he pleaded

          guilty to, having been found in the United States on December 19,
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          1991, over a month and a half after the November 1991 Guidelines'

          amendments.4   Application  of  these  amendments  to  Rodriguez'
                              
          ____________________

               4Alternatively,   the  government   urges   this  court   to
          characterize  Section 1326(a)  as  a continuing  offense.   Other
          courts,  in   discussing  the  application  of   the  statute  of
          limitations, have come to differing conclusions regarding whether
          this  statute describes  a  continuing offense.   Compare,  e.g.,
                                                            _______   ____
          United  States v. DiSantillo, 615 F.2d 128, 132-37 (3d Cir. 1980)
          ______________    __________
          (crime  of  illegal  entry  through  recognized  Immigration  and
          Naturalization port  of entry  after being arrested  and deported
          not a continuing  offense, so  as to toll  applicable statute  of

                                         -6-

offense,  they contend,  therefore does not  violate the  ex post
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          facto clause.
          _____

               Barring any  ex post facto concerns,  a defendant ordinarily
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          should  be sentenced according to the Guidelines in effect at the

          time of sentencing.   18  U.S.C.   3553(a)(4);  United States  v.
                                                          _____________

          Harotunian,  920 F.2d  1040, 1041-42  (1st Cir. 1990).   However,
          __________

          when a guideline amendment  increases the punishment imposed, the

          ex  post facto  clause of  the Constitution  prevents retroactive
          __  ____ _____

          application of the  guideline to offenses committed  prior to the

          effective date of the amendment.   In such a case, the  guideline

          in effect at the time the crime was committed must be used.   See
                                                                        ___

          U.S. Const. art. I,   9,  cl.3; United States v. Molina, 952 F.2d
                                          _____________    ______

          14, 522-23 (D.C.  Cir. 1992).  Determining whether application of

          the  November 1991 Guidelines  violated the ex  post facto clause
                                                      __  ____ _____

          requires us  to decide when Rodriguez committed the offense: when

          he crossed the  border on September 1991, or when  he was caught,

          on December 19, 1991?

               As the Supreme Court has  stated in interpreting a different

          section of  the Immigration and Nationality Act  of 1952, "`[t]he

          cardinal principle of  statutory construction is to  save and not

          to destroy.'   It is  our duty `to  give effect, if  possible, to

          every clause and word of a statute.'"  United States v. Menasche,
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          limitations for as  long as  alien remains in  the country)  with
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          United  States v.  Bruno, 328  F. Supp.  815, 825  (D.  Mo. 1975)
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          (criminal  conduct of  being  found in  the  United States  after
          having been excluded and  deported continues so long as  alien is
          present in the United States).  
               Because  we conclude  that  Section 1326(a)  describes three
          separate offenses, we need not reach this issue.  

                                         -7-

348 U.S.  528, 538-39 (1955) (citations omitted).   Applying this

          principle, we think it plain  that "enters," "attempts to enter,"

          and "is at any  time found in" describe three  distinct occasions

          on which a deported  alien can violate Section 1326.   The phrase

          "found  in" otherwise would  be surplusage,  because it  would be

          redundant with "enters."  Accord  United States v. Whittaker, 999
                                    ______  _____________    _________

          F.2d 38, 41-43  (2d Cir.  1993); United States  v. Gonzales,  988
                                           _____________     ________

          F.2d 16, 18  (5th Cir. 1993); United States  v. Alvarez-Quintero,
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          788 F. Supp. 132, 133-34 (D.R.I. 1992).  

               This construction is consistent with the legislative history

          discussed in  United States v.  DiSantillo, 615 F.2d  128, 134-35
                        _____________     __________

          (3d  Cir.  1980).   In  DiSantillo,  the  court  noted that  when
                                  __________

          Congress  reenacted  the statute  in  1952,  it  added  the  term

          "found," but did not  remove "enters."  Id. at 135.  In so doing,
                                                  ___

          the court concluded, Congress  must have intended to broaden  the

          statute to include the  crime committed when an alien  enters the

          United States  surreptitiously, of  which the INS  would have  no

          official  record, as  well as  the crimes  committed by  entry or

          attempted entry through regular immigration procedures.  There is

          no  other apparent reason for  retaining the word  "enters."  Id.
                                                                        ___

          The  court was persuaded that the amendment was aimed at ensuring

          that aliens  who  were  not apprehended  as  they  reentered  the

          country  nevertheless  could  be prosecuted  for  unlawful  entry

          whenever  they were  found.   See also  United States  v. Canals-
                                        ___ ____  _____________     _______

          Jimenez,  943  F.2d 1284,  1286-89  (11th  Cir. 1991)  (following
          _______

          DiSantillo in concluding  that an alien who had  sought admission
          __________

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through  recognized  immigration  port  of entry,  and  thus  was

          physically "in"  the country, could  not be prosecuted  under the

          "found in" clause, because  that clause was intended to  apply to

          aliens who have entered surreptitiously).

               In this  case,  regardless of  when  he entered  the  United

          States, Rodriguez violated the  statute when he was "found"  here

          on December  19, 1991, and he  pled guilty to the  crime of being

          "found  in"  the  United  States  at  that  time.    Accordingly,

          application  of the  November  1991 Guidelines  in computing  his

          offense level does not violate the ex post facto clause. 
                                             __ ____ _____

The decision of the district court is therefore AFFIRMED.
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