PUBLISH
UNITED STATES COURT OF APPEALS
Filed 4/16/96
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 95-3141
)
TONY CAONABO CABRERA-SOSA, )
)
Defendant-Appellant. )
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 94-10118-01)
Timothy J. Henry, Assistant Federal Public Defender (David J.
Phillips, Federal Public Defender, with him on the briefs),
Wichita, Kansas, for Defendant-Appellant.
D. Blair Watson, Assistant United States Attorney (Randall K.
Rathbun, United States Attorney, and Michael Christensen,
Assistant United States Attorney, with him on the brief),
Wichita, Kansas, for Plaintiff-Appellee.
Before SEYMOUR, Chief Judge, BRORBY, and MURPHY, Circuit Judges.
SEYMOUR, Chief Judge.
Tony Caonabo Cabrera-Sosa pled guilty to reentering the
United States after a previous deportation for a felony in
violation of 8 U.S.C. § 1326(b)(1). The district court sentenced
him to a term of sixty months. On appeal, Mr. Cabrera-Sosa
contends the district court’s application of the “aggravated
felony” enhancement violates clear statutory language and the Ex
Post Facto Clause. We affirm.
I.
In 1986, Mr. Cabrera-Sosa sold crack cocaine to an
undercover officer of the New York City Police Department, which
resulted in his conviction in July 1990 for felony possession of
cocaine.1 Mr. Cabrera-Sosa was deported in January 1992 to the
Dominican Republic after his release from prison. In late 1994,
DEA officers executed a search warrant at the Wichita residence
of Wilfred Escribano, whom they had identifed as Mr. Cabrera-
Sosa. Under questioning by INS officials, Mr. Escribano admitted
he was Mr. Cabrera-Sosa. He further explained he had obtained a
United States passport under the Escribano alias in 1989 and had
used it to reenter the United States one month after his 1992
deportation.
The record indicates that Mr. Cabrera-Sosa’s 1990
1
conviction was either for possession of cocaine or possession
with intent to distribute. As we discuss infra, this distinction
does not affect our holding.
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A grand jury indicted Mr. Cabrera-Sosa for reentering the
country after having been deported for an aggravated felony. He
pled guilty to the lesser charge of reentering after deportation
for a felony. In computing Mr. Cabrera-Sosa’s offense level,
however, the district court added a sixteen-point enhancement
because he had been “previously . . . deported after a conviction
for an aggravated felony.” U.S.S.G. § 2L1.2(b)(2). Mr. Cabrera-
Sosa contends that his drug trafficking conviction in 1990 was
not an aggravated felony within the plain meaning of section
2L1.2(b)(2), and that the aggravated felony enhancement violates
the Ex Post Facto Clause of the Constitution.
II.
We first consider Mr. Cabrera-Sosa’s argument that the
district court misapplied the Sentencing Guidelines. We review
the court’s interpretation of the guidelines de novo. United
States v. Agbai, 930 F.2d 1447, 1448 (10th Cir. 1991).
Section 2L1.2(b)(2) provides for a sixteen-level enhancement
to the base offense level “[i]f the defendant previously was
deported after a conviction for an aggravated felony.” The
Application Notes, which explicitly reflect the definition of
aggravated felony set out in 18 U.S.C. § 1101(a)(43),define
“aggravated felony” in pertinent part as “any illicit trafficking
in any controlled substance (as defined in 21 U.S.C. § 802),
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including any drug trafficking crime as defined in 18 U.S.C.
§ 924(c)(2).”2 U.S.S.G. § 2L1.2 comment. (n.7).
Under section 924(c)(2), the relevant statute, “the term
‘drug trafficking crime’ means 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.).”
18 U.S.C. § 924(c)(2). “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 offense must be
punishable under one of these three enumerated statutes; and
second, the offense must be a felony.” United States v. Forbes,
16 F.3d 1294, 1301 (1st Cir. 1994).
2
The initial definition of aggravated felony enacted in
1988 included “any drug trafficking crime as defined in section
924(c)(2) of title 18, United States Code.” Anti-Drug Abuse Act
of 1988, Pub. L. No. 100-690, § 7342, 102 Stat. 4181, 4469
(1988). A November 1990 amendment, effective after the
conviction here, added the emphasized language so the definition
included “any illicit trafficking in any controlled substance (as
defined in section 802 of Title 21), including any drug
trafficking crime as defined in section 924(c)(2) of Title 18).”
8 U.S.C. § 1101(a)(43)(B); Immigration Act of 1990, Pub. L. No.
101-649, § 501(a)(2), 104 Stat. 4978, 5048 (1990).
Mr. Cabrera-Sosa and the government devote considerable
effort to arguing whether the 1990 amendments applied to earlier
convictions. Both parties apparently assume that Mr. Cabrera-
Sosa’s July 1990 conviction was not a “drug trafficking crime”
within the 1988 definition of aggravated felony then in effect,
notwithstanding the district court’s holding to the contrary.
See rec., vol. I, doc. 25 at 2. Because we agree with the
district court, we do not reach the parties’ arguments about the
1990 amendments.
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The 1990 conviction meets both criteria. First, possession
of cocaine is clearly punishable under the Controlled Substances
Act. See, e.g., 21 U.S.C. § 844(a). Second, it is undisputed
that Mr. Cabrera-Sosa’s 1990 conviction was a felony within the
meaning of section 924(c)(2) even though it was a state
conviction. The Controlled Substances Act 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).3 Under New York
law any criminal offense punishable by more than one year is a
felony. N.Y. Penal Law § 10.00(5) (McKinney 1995). Since Mr.
Cabrera-Sosa’s sentence for his 1990 conviction was fifteen
months, the offense was a felony under New York law. See Forbes,
16 F.3d at 1301 n.10; Jenkins v. INS, 32 F.3d 11, 14 (2d Cir.
1994).
Mr. Cabrera-Sosa argues, however, that the definition of
“aggravated felony” does not include offenses committed prior to
the enactment of the Anti-Drug Abuse Act of 1988 (ADAA), which
introduced the definition. Section 7342 of the ADAA, which
defined “aggravated felony,” did not specify whether the term
applied to offenses committed prior to the law’s enactment. See
Pub L. No. 100-690, 102 Stat. 4181, 4470 (1988). “Instead, the
temporal scope of the term is determined in the substantive
See also U.S.S.G. § 2L1.2 comment. (n.7) (“The term
3
‘aggravated felony’ applies to offenses . . . whether in
violation of federal or state law . . . .”).
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sections that follow the definition--the sections providing for a
variety of consequences that attach upon the conviction of an
aggravated felony.” Ayala-Chavez v. United States, 945 F.2d 288,
291 (9th Cir. 1991) (emphasis added), overruled on other grounds,
Pub. L. No. 102-232, § 306(a)(11)(B), 105 Stat. 1733, 1751
(1991). Each of the substantive sections contained an
applicability provison which specifically stated to whom the
section applied. Id. The section criminalizing the conduct at
issue here provided for enhanced penalties for reentry by aliens
“whose deportation was subsequent to a conviction for commission
of an aggravated felony.” ADAA § 7345(a), 102 Stat. at 4471
(emphasis added). The applicability provision stated that this
amendment applied to “any alien who enters . . . the United
States on or after [November 18, 1988].” Id. § 7345(b).
Mr. Cabrera-Sosa was convicted in 1990 of a crime defined at
that time as an aggravated felony, he was subsequently deported,
and his later reentry was obviously after 1988. Accordingly, we
reject his argument that the ADAA definition does not apply to
him. We hold that his 1990 conviction was an aggravated felony
within the meaning of section 2L1.2(b)(2).
III.
Mr. Cabrera-Sosa also contends the “aggravated felony”
enhancement violates the Ex Post Facto Clause of the
Constitution. We review this question de novo. United States v.
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Walker, 27 F.3d 417, 419 (9th Cir.), cert. denied, 115 S. Ct. 377
(1994).
The Constitution provides that “No Bill of Attainder or ex
post facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3.
The Supreme Court has “held that [this] Clause is aimed at laws
that ‘retroactively alter the definition of crimes or increase
the punishment for criminal acts.’” California Dep’t of
Corrections v. Morales, 115 S. Ct. 1597, 1601 (1995) (quoting
Collins v. Youngblood, 497 U.S. 37, 44 (1990)).
We recently addressed the Ex Post Facto Clause’s
implications for sentencing:
“An ex post facto law is one that among other
things (1) makes conduct criminal that was legal
when done, or (2) inflicts greater punishment
for an offense than the law existing when the
offense was committed.” To determine whether
the application of a sentencing guidelines
provision violates the Ex Post Facto Clause, the
Supreme Court has articulated a two-prong test:
first, did the sentencing court apply the
guideline to “events occurring before its
enactment,” and second, did that guideline
“disadvantage the offender affected by it.”
United States v. Gerber, 24 F.3d 93, 96 (10th Cir. 1994) (quoting
United States v. Patzer, 15 F.3d 934, 942-43 (10th Cir. 1993),
and Miller v. Florida, 482 U.S. 423, 430 (1987)). We have held
the Ex Post Facto Clause prevents a court from applying an
amended version of a sentencing guideline that was not yet in
effect when the defendant committed the crime. United States v.
Underwood, 938 F.2d 1086, 1090 (10th Cir. 1991); see also United
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States v. Orr, 68 F.3d 1247, 1252-53 (10th Cir. 1995) (remanding
for resentencing under the guidelines in effect when the crime
was committed), cert. denied, 116 S.Ct. 747 (1996).
Mr. Cabrera-Sosa was clearly disadvantaged by the aggravated
felony enhancement because the Sentencing Guidelines impose a
sixteen-point increase in his base offense level. U.S.S.G. §
2L1.2. However, the relevant event was not the crime of drug
trafficking. Mr. Cabrera-Sosa pled guilty to reentering the
country without permission after deportation. The event for
which he was sentenced was his reentry, not his drug offense.
See United States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.
1994). The penalties were unambiguous when he reentered the
country in 1992, and subsequent changes in the law have not been
applied to his detriment. See Weaver v. Graham, 450 U.S. 24, 30
(1981) (“Critical to relief under the Ex Post Facto Clause is not
an individual’s right to less punishment, but the lack of fair
notice and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was
consummated.”).
Other courts have held the Ex Post Facto Clause inapplicable
when confronted with similar facts. See United States v. Saenz-
Forero, 27 F.3d 1016, 1018-21 (5th Cir. 1994) (holding that
enhancement of defendant’s sentence under § 1326(b)(2) and §
2L1.2(b)(2) for 1985 conviction for conspiring to possess and
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distribute cocaine was not ex post facto violation); United
States v. Troncoso, 23 F.3d 612, 615 (1st Cir. 1994) (rejecting
ex post facto attack on conviction under § 1326(b)(2) where
defendant’s aggravated felony convictions predated ADAA
amendments), cert. denied, 115 S. Ct. 912 (1995); Arzate-Nunez,
18 F.3d at 733-35 (“Since Arzate-Nunez reentered the country
after both 8 U.S.C. § 1101(a)(43) and U.S.S.G. § 2L1.2 were in
effect, the district court correctly rejected his ex post facto
claims.”); see also Gryger v. Burke, 334 U.S. 728, 732 (1948)
(holding that recidivist statute was not unconstitutional ex post
facto law even though defendant’s classification as habitual
offender relied on offense occurring prior to effective date of
recidivist statute). Mr. Cabrera-Sosa’s sentencing did not
violate the Ex Post Facto Clause.
We AFFIRM the judgment of the district court.
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