United States v. Straw

Opinion

USCA1 Opinion

July 15, 1994     UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No.  93-2169

UNITED STATES,
                                      Appellee,

                                          v.

                                     WAYNE STRAW,
                                Defendant, Appellant.
                                 ____________________

ERRATA SHEET

               The opinion of this Court issued on July 11, 1994 is amended
          as follows:

               Page 4, line 21 change the number "15" to "16"

July 12, 1994         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 93-2169

UNITED STATES,

                                      Appellee,

                                          v.

                                     WAYNE STRAW,

                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               William A. Hahn and Hahn & Matkov on brief for appellant.
               _______________     _____________
               Donald  K.  Stern, United  States  Attorney,  and Robert  E.
               _________________                                 __________
          Richardson,  Assistant  United  States  Attorney,  on  brief  for
          __________
          appellee.

__________________

                                  __________________

Per Curiam.  Wayne Straw appeals his conviction and
                      __________

            sentence  for illegal  reentry into  the United  States after

            deportation, 8 U.S.C.    1326.  We  summarily affirm pursuant

            to Loc. R. 27.1. 

                                      Background
                                      __________

                 On January  11, 1990, the United  States Immigration and

            Naturalization Service deported Straw  from the United States

            to Jamaica.  Prior  to his deportation, Straw had  been twice

            convicted in  Dorchester  District Court  for  possession  of

            marijuana  (once in 1981 and again in 1982).  Straw was found

            in  the United  States in  February, 1993.   A  federal grand

            jury, in  a one-count  indictment, charged him  with unlawful

            reentry after deportation in violation of 8 U.S.C.    1326(a)

            and (b)(2).   Straw pleaded  guilty, preserving his  right to

            appeal his sentence.

                 Adopting the factual findings and recommended sentencing

            guideline  application  contained   in  Straw's   presentence

            report, the  district court  increased  Straw's base  offense

            level by 16, pursuant  to U.S.S.G.   2L1.2, on account of his

            1981 and 1982 convictions for "aggravated felonies."  A total

            offense  level of 21 and  a criminal history  category of III

            yielded an imprisonment range of 46  to 57 months.  The court

            sentenced Straw to 46 months in prison.

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Discussion
                                      __________

                 Straw argues  on appeal that the  sentencing court erred

            in increasing his  base offense level pursuant  to U.S.S.G.  

            2L1.2, which provides, in relevant part, as follows:

                 (2) If  the defendant previously was deported after
                 a conviction for an aggravated felony,  increase by
                 16 levels.

            The statutory authority for this guideline provision is found

            in 8 U.S.C.    1326(b), which imposes a maximum penalty of 15

            years for the crime  of illegal reentry following deportation

            "subsequent to  a conviction for commission  of an aggravated

            felony."  8 U.S.C.   1326(b)(2).   The Anti-Drug Abuse Act of

            1988 (the "ADAA") added subsection (b) to   1326. 

                 On appeal,  Straw contends, as he did  at his sentencing

            hearing, that the use of his prior convictions to enhance his

            sentence under   1326(b)(2) violates the ex post facto clause

            of the Constitution.   Specifically, Straw argues that at the

            time  of  his  convictions  for  marijuana  possession, those

            offenses did not constitute "aggravated felonies."  Not until

            1988, when Congress  enacted the ADAA,  did the law  classify

            possession of marijuana as  an "aggravated felony," enhancing

            the penalty for illegal reentry.  See 8 U.S.C.    1101(a)(43)
                                              ___

            and  1326(b)(2).   Therefore, Straw  reasons, to  enhance his

            sentence based upon convictions that pre-dated  the amendment

            adding the  enhanced penalty  provision would violate  the ex

            post  facto  clause's prohibition  against  the retrospective

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application   of  laws   that  materially   disadvantage  the

            defendant. See U.S. Const. art. I,   9, cl. 3. 
                       ___

                   We recently  rejected an identical  argument in United
                                                                   ______

            States  v.  Forbes, 16  F.3d  1294 (1st  Cir.  1994).   As we
            ______      ______

            reasoned  there,  the  enhancement  provision  increases  the

            punishment for  the crime of  unlawful reentry  and does  not

            affect the punishment that Straw received for the offenses he

            committed before the effective  date of the ADAA. See  id. at
                                                              ___  ___

            1302.  "As the Gryger  [v. Burke, 334 U.S. 728 (1948)]  Court
                           ______      _____

            observed, the fact that  prior convictions that factored into

            a defendant's increased sentence preceded the enactment of an

            enhancement  provision does  not  render  the  Act  invalidly

            retroactive." Id.  Therefore, we hold that Straw's conviction
                          ___

            and sentence do not violate the ex post facto clause.

                 To  the extent  that  appellant argues,  as a  matter of

            statutory  construction,  that  Congress  did  not  intend   

            1326(b)(2)  to apply  retroactively  to a  defendant who  was

            convicted  and deported  prior to  enactment of the  ADDA, we

            have  also recently  rejected precisely  that argument.   See
                                                                      ___

            United  States v. Troncoso, No.  93-2130, slip op.  at 8 (1st
            ______________    ________

            Cir. May 18, 1994); see also United States v. Forbes, 16 F.3d
                                ___ ____ _____________    ______

            1294  (upholding  application   of     1326(b)(2)  based   on

            aggravated   felony  convictions   that  occurred   prior  to

            effective date of ADAA).

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Straw's  final argument  is  that the  "rule of  lenity"

            should bar  the application  of the enhancement  provision in

            this  case.    The  rule   of  lenity  requires,  in  certain

            circumstances, that ambiguity in criminal statutes, including

            sentencing provisions,  be resolved in defendant's favor. See
                                                                      ___

            United States  v. Granderson, 114  S. Ct. 1259,  1267 (1994);
            _____________     __________

            United States v.  Bass, 404 U.S. 336, 347  (1971).  Straw has
            _____________     ____

            failed to convince us, however, that there is ambiguity about

            whether    1326(b) was intended  to apply to  a defendant who

            was convicted and  deported prior to  enactment of the  ADDA,

            but illegally reentered the country thereafter.   In   United
                                                                   ______

            States v. Troncoso, No.  93-2130, slip op. at 8,  we affirmed
            ______    ________

            the district court's application of   1326(b)(2) to enhance a

            sentence  for  illegal  reentry  by an  alien  convicted  and

            deported prior to the ADAA's enactment, based upon the "plain

            meaning  of the  provision."   We noted  there that  "the Act

            provided  that the  amendment  adding section  1326(b) 'shall

            apply to any alien who enters, attempts to enter, or is found

            in,  the United States on or after  the date of the enactment

            of this  Act.'" Id. at 6.  The rule of lenity "cannot dictate
                            ___

            an implausible interpretation of  a statute . . .  ."  Taylor
                                                                   ______

            v. United States,   495 U.S. 575, 596 (1990).   Therefore, we
               _____________

            decline Straw's invitation to apply the rule of lenity here.

                 For  the  foregoing   reasons,  Straw's  conviction  and

            sentence are summarily affirmed pursuant to Loc. R. 27.1.

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