United States v. Forbes

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1371

UNITED STATES OF AMERICA,

Petitioner, Appellee,

v.

ROBERT FORBES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Breyer, Chief Judge,

Coffin, Senior Circuit Judge,

and Torruella, Circuit Judge.

C. Sidney Lester with whom Lester, Hubbert & Gill, P.C. was on

brief for appellant.
Edwin O. Vazquez, Assistant United States Attorney, with whom

Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa,

Senior Litigation Counsel, were on brief for appellee.

February 25, 1994

Coffin, Senior Circuit Judge. Robert George Forbes appeals

his conviction and sentence for illegal reentry into the United

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

I. Factual Background

In August 1992, Robert George Forbes, a Jamaican citizen,

was deported from New York to Jamaica. The following month,

Forbes attempted to reenter the United States with a false

passport that had been altered to include his picture. A federal

grand jury in the District of Puerto Rico subsequently returned a

two count indictment against Forbes, charging him with unlawfully

using an altered passport, in violation of 18 U.S.C. 1543, and

with unlawfully attempting to reenter the United States after

having previously been arrested and deported, in violation of 8

U.S.C. 1326.1

1The indictment reads as follows:
Count One
On or about September 20, 1992, in the District of
Puerto Rico, and within the jurisdiction of this Court,
Robert George Forbes
also known as
Julian David Brynteson
the defendant herein, while applying for admission into the
United States of America, willfully, knowingly, and
unlawfully, did use an altered passport, to wit: United
Kingdom passport number 003856139 in the name of JULIAN
DAVID BRYNTESON which passport had been altered by removing
the photograph of the owner and replacing it with one of
the defendant. All in violation of Title 18, United States
Code, Section 1543.

COUNT TWO

On or about September 20, 1992, in the district of
Puerto Rico and within the jurisdiction of this Court,
Robert George Forbes
also known as
Julian David Brynteson

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On December 16, 1992, Forbes entered into a plea agreement,

in which he pled guilty only to the charge of unlawfully entering

the United States, in violation of 8 U.S.C. 1326. As part of

his plea, Forbes waived his right to appeal "any legal sentence

imposed by the Court under the Sentencing Guidelines as a result

of this Plea Agreement."

Forbes' presentence report (PSR) computed his total offense

level at 21: 8 points were assigned as the base offense level for

convictions under 8 U.S.C. 1326, 16 points were added for his

previous deportation after a conviction for an aggravated felony,

and 3 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). The PSR also

recommended a criminal history category of III, based on 4

criminal history points. See U.S.S.G. 5, Part A.

At a sentencing hearing held on March 12, 1993, the

district court adopted the recommendations of the PSR, and

determined the corresponding sentencing guidelines range to be

46-57 months. Based on evidence of Forbes' cooperation with the

government in other cases, and his continued willingness to

the defendant herein, being an alien previously arrested
and deported from the United States, that is, on or about
August 18, 1992, to Jamaica, willfully, knowingly, and
unlawfully did attempt to reenter the United States from a
place outside of the United States without having obtained,
prior to his reembarkation, the express consent and
permission from the Attorney General of the United
Stat[e]s. All in violation of Title 8, United States Code,
Section 1326.

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cooperate in the future, the sentencing judge departed downward

from the applicable guideline range, and imposed a sentence of 36

months plus three years of supervised release. This appeal

followed.

Forbes argues that the waiver of his right to appeal is

ineffective, because it was not knowingly and voluntarily made;

and that, even were the waiver effective, he still has a right to

appeal his sentence, because the court erred in applying the

Sentencing Guidelines to compute his sentence. He also claims

that the government's failure to allege in his indictment the

aggravated felony used to enhance his sentence under 8 U.S.C.

1326(b)(2) renders the indictment sufficient only to charge him

with a violation of 8 U.S.C. 1326(a). Forbes' final claim is

that the use of a prior felony conviction to enhance his sentence

under 1326 violates the ex post facto clause of the

Constitution.

II. The Waiver Provision

By its terms, the waiver provision in Forbes' plea

agreement is narrow, covering only the right to appeal any legal

sentence imposed under the Sentencing Guidelines. We need not

reach the question of whether his waiver was knowing and

voluntary, nor whether Forbes' claims lie beyond the scope of

this waiver, because his appeal suffers from a more fundamental

defect. Because he failed to raise any of these claimed errors

before the district court, with the exception of his challenge to

the sufficiency of the indictment, see infra at 5-14, we cannot

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correct them absent a showing of plain error, United States v.

Carozza, 4 F.3d 70, 86-87 (1st Cir. 1993). As we discuss below,

Forbes has failed to make such a showing here.

III. Forbes' Section 1326 Claim

Forbes pled guilty to one count of unlawful reentry

following deportation, in violation of 8 U.S.C. 1326, the full

text of which is set forth in the margin.2 Subsection (b) of

this provision was added by Congress as part of the Anti-Drug

Abuse Act of 1988, see Pub. L. 100-690, Title VII, 7345(a), 102

Stat. 4471 (codified as amended at 8 U.S.C. 1326(b) (1988)).

Forbes' indictment alleged only unlawful reentry following

2This statute provides:

(a) Subject to subsection (b) of this section, any 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, unless (A) prior to his
reembarkation at a place outside the United States or his
application for admission from foreign contiguous
territory, the Attorney General has expressly consented to
such alien's reapplying for admission; or (B) with respect
to an alien previously excluded and deported, unless such
alien shall establish that he was not required to obtain
such advance consent under this chapter or any prior Act,

shall be fined under Title 18, or imprisoned not more than
2 years, or both.

(b) Notwithstanding subsection (a) of this section, in the
case of any alien described in such subsection--
(1) whose deportation was subsequent to a conviction
for commission of a felony (other than an aggravated
felony), such alien shall be fined under Title 18,
imprisoned not more than 5 years, or both; or
(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.

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deportation, and did not include any reference to his prior

aggravated felony conviction. Forbes claims that the

government's failure to allege the prior aggravated felony that

permitted it to sentence him within the limits set forth under

subsection (b)(2) renders the indictment sufficient only to

charge a violation of 1326(a), and requires that his sentence

be contained within the statutory maximum set forth by that

subsection. If, as Forbes contends,

1326(a) and 1326(b) describe separate and distinct offenses,

his sentence cannot stand, because he cannot be sentenced and

convicted under a statutory provision under which he has not been

indicted. Hamling v. United States, 418 U.S. 87, 117 (1974);

United States v. McDonough, 959 F.2d 1137, 1140-41 (1st Cir.

1992). The government replies that Forbes' failure to

present this issue before the district court bars this court from

considering it on appeal. It claims, further, that 1326

describes only a single offense, and that subsection (b) is a

sentence enhancement provision, which permits the court to

increase the penalties for a violation depending on the

defendant's criminal record.

Forbes' failure to point out perceived defects in the

indictment does not preclude our consideration of this argument

on appeal. Under Federal Rule of Criminal Procedure 12(b)(2), an

objection that an indictment fails to state an essential element

of an offense "shall be noticed by the court at any time during

the pendency of the proceedings." This objection may be raised

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by a defendant for the first time on appeal, United States v.

Seuss, 474 F.2d 385, 387 n.2 (1st Cir. 1973), or by an appeals

court sua sponte, see United States v. Saade, 652 F.2d 1126, 1133

(1st Cir. 1981) (citing cases). When such an objection is urged

for the first time on appeal, courts have required that

indictments be construed liberally, finding an indictment to be

sufficient unless there is no reasonable construction by which it

could charge an offense for which the defendant was convicted.

See, e.g., United States v. Wilson, 884 F.2d 174, 179-181 (5th

Cir. 1989). While statutory citation, standing alone, cannot

substitute for setting forth the elements of a crime, it may

reinforce other references in the indictment so as to render it

valid. United States v. McLennan, 672 F.2d 239, 243-44 (1st Cir.

1982).

Forbes' indictment follows the language of 8 U.S.C.

1326(a). It makes no reference to the fact that Forbes was

deported subsequent to a conviction for an aggravated felony.

If, as Forbes maintains, an aggravated felony conviction is an

element of a 1326(b) offense, his indictment is insufficient,

because it fails to set out an essential element of an offense

under that section.

Whether 1326(a) and 1326(b) describe separate criminal

offenses, with different elements and maximum penalties, or a

single offense, allowing sentence enhancement based on a

defendant's criminal history, is an issue of first impression in

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this court.3 The District Court for the District of Rhode

Island, the only court within our circuit to address this issue,

recently held that 1326(a) and 1326(b) set forth separate and

distinct offenses, with different elements and maximum penalties.

United States v. Vieira-Candelario, 811 F. Supp. 762, 768 (D.R.I.

1993). The Fifth and the Ninth Circuits, both of which have

tackled this issue in the past two years, have come to opposite

conclusions. See United States v. Campos-Martinez, 976 F.2d 589

(9th Cir. 1992) (sections 1326(a) and (b) state separate crimes);

United States v. Gonzalez-Medina, 976 F.2d 570 (9th Cir. 1992)

(same)4; United States v. Vasquez-Olvera, 999 F.2d 943 (5th Cir.

1993) (section 1326(b) is a sentence enhancement provision)5;

see also United States v. Crawford, 815 F. Supp. 920 (E.D. Va.

1993) (same).

In determining whether a statute is a sentence enhancement

provision or a separate criminal offense, we look at its

language, structure, and legislative history. See, e.g., United

3We have, however, noted the issue. See United States v.

Zapata, 1 F.3d 46, 50 n.5 (1st Cir. 1993) (citing United States

v. Vieira-Candelario, 811 F. Supp. 762, 768 (D.R.I. 1993)).

4The Ninth Circuit decisions gave no rationale for their
conclusion that these provisions described separate offenses,
with different elements and maximum sentences, other than to say
that this statute was similar to 8 U.S.C. 1325, which counted a
prior conviction for illegal entry as an element of the felony
offense under that section. See Campos-Martinez, 976 F.2d at

591-92; Gonzalez-Medina, 976 F.2d at 572-73.

5Judge King wrote a dissenting opinion in which she adopted
the Ninth Circuit's analysis in Campos-Martinez and the District

of Rhode Island's analysis in Vieira-Candelario. 999 F.2d at

947-950.

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States v. Rumney, 867 F.2d 714, 717-18 (1st Cir. 1989) (examining

these factors in holding that provision of the Armed Career

Criminal Act of 1984 was a sentence enhancer, and not a separate

offense). We have noted that particular structural features,

such as a penalty that is a multiplier of the sentence for the

underlying crime, or a title denoting it as a sentence

enhancement provision, may indicate that a statutory provision is

a sentence enhancer, but we have not treated these features as

conclusive. See id. at 718-19. Our analysis begins with the

statute's language and structure.

In our view, the language and structure are unhelpful,

because the provisions are subject to two plausible readings.

The first was adopted by the Fifth Circuit and used to support

its conclusion that subsection (b) is a sentence enhancement

provision. Vasquez-Olvera, 999 F.2d at 946. That court noted

that, in drafting the introductory language of subsections (a)

and (b), Congress intertwined the two provisions: the

introductory language of subsection (a) states "subject to

subsection (b) of this section," and the introductory language of

subsection (b) states, "subject to subsection (a) of this

section." The Fifth Circuit found that it would be "highly

unlikely that Congress would structure the statute in such a way

that subsection (b) is dependent on elements of subsection (a),

if it intended for subsection (b) to be a separate criminal

offense." Id.; accord Crawford, 815 F. Supp. at 923.

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We believe it just as likely, however, that subsection (b)

incorporates the offense described in subsection (a), and simply

adds the additional element regarding a prior conviction of a

felony or aggravated felony. Vasquez-Olvera, 999 F.2d at 948

(King, J. dissenting); see also Vieira-Candelario, 811 F. Supp.

at 767 (finding the statute's plain language ambiguous). The

fact that each subsection makes reference to the other is simply

the logical way of indicating the relationship between the

arguably two separate crimes.

Nor does the title of the statute offer sufficient guidance

about whether subsection (b) is a sentence enhancer or a separate

element of the crime. Before 1988, the statute was entitled

"Reentry of deported alien." In 1988, the statute was amended to

add subsection (b), and to change the title to "Reentry of

deported alien; criminal penalties for reentry of certain

deported aliens." One court has argued that this change in the

title indicates that in amending 1326, Congress intended to

create enhanced penalties for certain aliens who committed the

underlying offense of unlawfully reentering the United States

following deportation. Crawford, 815 F. Supp. at 924; see also

United States v. Vasquez-Olvera, 999 F.2d at 945. While this

argument has some force, we think that a competing interpretation

is equally permissible. The bifurcated structure of 1326 and

the apparent incorporation of the elements of subsection (a) into

subsection (b) might also suggest that Congress intended the

broad title of the offense ("reentry of deported alien") to apply

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to both separate offenses in the different subsections. Vasquez-

Olvera, 999 F.2d at 949 (King, J., dissenting). Finally, we have

not found any legislative history discussing this particular

aspect of 8 U.S.C. 1326(b)(2). Lacking insight from the

language, structure and legislative history we are compelled to

take a broader look at the factors implicated by a decision to

classify a provision either as a sentence enhancer or a separate

crime. In so doing, we have found guidance in a previous

decision of this court addressing a similar issue. In United

States v. Rumney, 867 F.2d 714 (1st Cir. 1989), we were asked to

determine whether the Armed Career Criminal Act, 18 U.S.C.

1202(a) (Supp. 1984) (ACCA)6, was a sentence enhancer or a

separate substantive crime. Section 1202(a) penalized receipt,

possession, or transportation of firearms by those with prior

felony convictions. The ACCA amended this statute to increase

the minimum penalty for a person who "receives, possesses, or

transports in commerce . . . any firearm and who has three

previous felony convictions." 18 U.S.C. 1202(a) (Supp. 1984).

Rumney, like Forbes, challenged his sentence under the higher

maximum, arguing that the government's failure to allege three

prior convictions in the indictment rendered the indictment

insufficient to charge a violation of the ACCA. 867 F.2d at 717.

We resolved the question in Rumney primarily based on

6The statute has since been recodified into two separate
provisions. The first sentence of the former 1202(a),
describing the unlawful conduct, now appears at 18 U.S.C.
922(g), while the ACCA provision has been incorporated into the
other penalty provisions of 18 U.S.C. 924(e).

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legislative history, which demonstrated Congress' intent that the

ACCA be a sentence enhancer, and not a separate statutory

element. We also observed, however, that the special nature of

the disputed prior crimes provision further supported its

classification as a sentence enhancer. Rumney, 867 F.2d 714,

718-19; see also United States v. Jackson, 824 F.2d 21, 25-26

(D.C. Cir. 1987).

We felt it significant that if the disputed provision were

deemed a separate element, the government would be required to

place evidence of the defendant's prior felony convictions before

the jury. The introduction of prior crimes evidence is highly

prejudicial, and should not be permitted lightly, Rumney, 867

F.2d at 719; see also Jackson, 824 F.2d at 25 (noting strong

Congressional policy of avoiding introduction of this type of

potentially prejudicial evidence in criminal trials). Thus,

strong policy reasons for keeping information about prior crimes

from the jury counselled in favor of our determination that the

ACCA was a sentence enhancer, an issue to be decided by the

judge.

In addition, under traditional sentencing procedures, proof

of a defendant's prior felony convictions typically is the type

of individual background information considered by the judge, and

not the jury, see Gov't of Virgin Islands v. Castillo, 550 F.2d

850, 853 n.5 (3rd Cir. 1977); see also id. at 854 (noting that

additional language in statutory provision that increased penalty

for conduct which was already a crime was in the nature of a

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sentencing statute rather than a substantive offense statute).

Compare United States v. Michael, 10 F.3d 838, 842 (D.C. Cir.

1993) (concluding that statutory amendment singling out

possession of cocaine base for especially harsh penalties was a

separate element, and not a sentence enhancer, based, in part, on

observation that unlike consideration of prior crimes, whose

admission before the jury was highly prejudicial, the

determination of the character of the drug was an aspect of the

events associated with the crime itself, and a fact that juries

typically resolve). And, as we noted in Rumney, "the primary

rationale for requiring sentencing factors to be submitted to a

jury -- the necessity for accurate factfinding -- does not apply

in the instant case. Prior convictions are highly verifiable

matters of record which need not be subject to jury inquiry.

Because defendants had received the totality of constitutional

protections due in the prior proceedings, no additional

factfinding is necessary." 867 F.2d at 719 (quoting United

States v. Brewer, 853 F.2d 1319, 1326 (6th Cir. 1988)).7

This reasoning similarly applies here. If we find that

1326(b) is a separate element, a defendant's past felony

7As the Fifth Circuit has explained in the context of a
similar recidivist statute, prior convictions "have no relation
to the circumstances of the wrongdoing constituting the most
recent offense, but rather to something which is wholly unrelated
thereto. Further, they do not relate to determining what the
accused has done but rather what the state has previously

determined that he has done. And that previous determination
must have been a formal, judicial determination of guilt; and

hence one as to which the full measure of constitutional
protections was available." Buckley v. Butler, 825 F.2d 895, 903

(5th Cir. 1987).

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conviction would have to be revealed to the jury.8 This

information is especially prejudicial where, as here, the

underlying crime (unlawful reentry following deportation) might

not be viewed by the jury as particularly egregious. In the

absence of Congressional direction, we are reluctant to impose

that burden on defendants. We realize that the defendant here

argues for a determination that 1326(b) is a separate element.

The posture of this particular case makes that position

strategically desirable. But the omission of an element from an

indictment is an error easily remedied by the government, while

the prejudice from the introduction of prior crimes is not so

easily neutralized. In the long run, we believe that defendants

have more to lose than gain from the interpretation of the

provision urged by Forbes on this appeal.

Thus, while we have no direction from the statute itself,

policy and precedent persuade us that 1326(b) should be

construed as a sentence enhancement provision. The indictment

therefore need not have alleged Forbes' prior aggravated felony

conviction to permit his sentencing under 1326(b).

IV. Sentencing Guidelines Claims

Forbes raises three additional claims of error with regard

to the calculation of his sentence. First, he argues that the

sentencing court erred in increasing his base offense level by

8In some cases, this may include evidence of more than one
conviction. For example, an aggravated felony within the meaning
of 8 U.S.C. 1326(b)(2) might be made up of more than one
criminal act. See infra at 15-17.

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sixteen points under guideline provision 2L1.2(b)(2), based on

the finding that Forbes previously was deported after having been

convicted for an aggravated felony. Forbes claims that the

offense on which the government relied to support the sixteen

point penalty enhancement does not qualify as an aggravated

felony. Second, he contends that the application of the

aggravated felony enhancement to this conviction violates the ex

post facto clause of the Constitution. Finally, he argues that a

1986 violation for which he received a conditional discharge

sentence should not have been included in the calculation of his

criminal history category.

As noted above, Forbes did not raise any of these

challenges before the district court, and they consequently are

subject to only plain error review. See p. 4 supra.

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A. Aggravated felony determination

The Sentencing Guidelines relating to offenses under 8

U.S.C. 1326 are set forth at U.S.S.G. 2L1.2. This provision

sets the base offense level for unlawful entry into the United

States at 8, with an increase of 4 levels if the defendant

previously was deported after conviction for a felony, or 16 if

the defendant previously was deported after conviction for an

aggravated felony.9 Forbes argues that his 1988 conviction

under N.Y. Penal Law 220.09 (McKinney 1989) does not qualify as

an aggravated felony. He claims, therefore, that by assigning

him 16 points for this conviction, the court overstated his base

offense level.

9The offense of conviction, 8 U.S.C. 1326, and the
applicable guidelines, U.S.S.G. 2L1.2, share a similar
structure, but serve different functions. Section 1326 sets
forth the elements of the offense and the maximum penalties for
convictions under this section. Once a defendant has been
convicted, the guidelines operate to determine the appropriate
penalty within this range. In this case, the guidelines direct
the court to consider specific offense characteristics under
2L1.2, which include previous deportation following an aggravated
felony conviction, in order to determine the applicable guideline
sentencing range, see U.S.S.G. 1B1.2(b) & application n.2;

2L1.2(b)(2). Under the guidelines, courts may consider such
information for sentencing purposes even where this conduct was
not an element of the offense of conviction. For example, if we
were to hold that 1326(a) and (b) were two separate offenses,
and that Forbes could be convicted and sentenced only under
1326(a), we still could consider his prior aggravated felony
conviction in calculating his sentence under 2L1.2. The sentence
we could impose however, would have to be within the two year
range set forth in 1326(a). See United States v. Arias, 941

F.2d 996 (9th Cir. 1991) (holding that defendants' prior felony
convictions, though not encompassed within a conviction under
1326(a), could still be considered in computing defendants'
sentence under U.S.S.G. 2L1.2, provided that the sentence
imposed did not exceed the two-year statutory maximum under
1326(a)).

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"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 18 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 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).

Forbes argues that the New York offense, Criminal

Possession of a Controlled Substance in the Fourth Degree, does

not meet either criterion, and therefore should not be construed

as an aggravated felony. His argument fails because it

misapprehends the operation of the applicable sentencing

guideline.

Possession of drugs is punishable under 21 U.S.C. 844(a),

a part of the Controlled Substances Act. This statute provides,

in relevant part:

It shall be unlawful for any person knowingly or
intentionally to possess a controlled substance unless such

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substance was obtained directly, or pursuant to a valid
prescription order, from a practitioner, while acting in
the course of his professional practice, or except as
otherwise authorized by this subchapter or subchapter II of
this chapter. Any person who violates this subsection may
be sentenced to a term of imprisonment of not more than 1
year, and shall be fined a minimum of $1,000, or both,
except that if he commits such offense after a prior
conviction under this subchapter or subchapter II of this
chapter, or a prior conviction for any drug or narcotic
offense chargeable under the law of any State has become
final, he shall be sentenced to a term of imprisonment for
not less than 15 days but not more than 2 years, and shall
be fined a minimum of $2,500 . . . .

A felony is defined under the Controlled Substances Act as

"any Federal or State offense classified by applicable Federal or

State Law as a felony." 21 U.S.C. 802(13). Under 18 U.S.C.

3559(a), an offense is a felony if the maximum term authorized

for the offense is "more than one year." The maximum penalty

authorized under 21 U.S.C. 844(a) for simple possession is one

year. However, one prior conviction turns simple possession into

a felony since the maximum penalty increases to over a year. In

this case, Forbes' 1987 conviction for Criminal Possession of

Marijuana in the Fifth Degree, in violation of N.Y. Penal Law

221.10 (McKinney 1989), converts his later conviction under

N.Y. Penal Law 220.09 into a felony.10 Because Forbes'

conviction is a felony punishable by one of the statutes

10Moreover, possession is a felony under the applicable
state law. In New York, the maximum imprisonment for Criminal
Possession of a Controlled Substance in the Fourth Degree is
fifteen years, see N.Y. Penal Law 220.09 (McKinney 1989),

70.00 (McKinney 1987), and any criminal offense punishable by
more than one year is a felony, N.Y. Penal Law 10.00 (McKinney
1987). Thus, under the definition of a felony in 21 U.S.C.
802(13), Forbes' possession conviction, which is a felony under
New York Law, is also a felony under the Controlled Substances
Act.

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enumerated in 18 U.S.C 924(c)(2), it therefore qualifies as an

aggravated felony within the meaning of U.S.S.G. 2L1.2.

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B. Ex post facto determination

The ex post facto provision of the Constitution bars the

retrospective application of laws that materially disadvantage

the defendant. See U.S. Const., Art. I, 9, cl. 3; Art. I,

10, cl. 1. A central concern of the ex post facto prohibition is

to assure that legislative acts "give fair warning of their

effect and permit individuals to rely on their meaning until

explicitly changed." Miller v. Florida, 482 U.S. 423, 430 (1987)

(quoting Weaver v. Graham, 450 U.S. 24, 28-29 (1981)).

Forbes argues that the use of his prior convictions to

trigger the aggravated felony enhancement provision of

1326(b)(2) violates the ex post facto provision both because the

convictions on which this enhancement was based occurred prior to

the effective date of the amendments adding subsection (b)(2),

and because he had no fair warning of the possible post-

conviction effects of the aggravated felony determination. In

support of his claimed lack of "fair warning," Forbes points to

his comment to the district judge at his sentencing hearing that

he had not been told by the immigration judge that he was being

deported "on an aggravated felony."

In Gryger v. Burke, 334 U.S. 728 (1948), the Supreme Court

addressed Forbes' first argument in the context of a state

habitual criminal act. In that case, the Court upheld, against

an ex post facto challenge, a state habitual criminal statute

enhancing penalties for crimes on the basis of a defendant's

prior criminal convictions, including one which occurred before

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the enactment of the statute. Id. at 732. Gryger thus

recognized the legislature's authority to enact an enhanced

penalty for future conduct preceded by a criminal conviction

obtained prior to enactment of the enhanced penalty provision.

See Covington v. Sullivan, 823 F.2d 37, 39 (2d Cir. 1987).

Forbes was convicted of a violation of 8 U.S.C. 1326,

which applies to aliens who illegally reenter the United States

following deportation. By its terms, the amendment adding

subsection (b) applies to any alien who enters or attempts to

enter the United States after November 18, 1988 (the date of the

Act's enactment). See Pub. L. 100-690, Title VII, 7345(b), 102

Stat. 4471. Forbes violated this statute by attempting to enter

the United States illegally on September 20, 1992, and the

district court enhanced his punishment based on convictions

entered prior to the effective date of the Act.

Forbes cannot claim that subsection (b)(2) "makes more

onerous the punishment for crimes committed before its

enactment." Weaver, 450 U.S. at 36. Forbes is being punished

for the crime of unlawful reentry, in violation of 1326. The

enhancement provision increases the punishment for this crime.

It does not affect the punishment that Forbes received for the

crimes he committed prior to the effective date of the Act. As

the Gryger 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. 334 U.S. at 732. Rather, an enhanced

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penalty "is not to be viewed as either a new jeopardy or

additional penalty for the earlier crimes. It is a stiffened

penalty for the latest crime, which is considered to be an

aggravated offense because a repetitive one." Id.

Nor does Forbes' claim that he lacked fair warning of the

application of the aggravated felony provision to his crime have

merit. He may, in fact, have been unaware of this; but fair

notice, as the sentencing judge stated, is "what the statute

says, not what the immigration officer might tell you." At the

time of Forbes' unlawful reentry, 1326 plainly provided an

enhanced sentence based on prior conviction for an aggravated

felony.

C. Conditional discharge sentence

Forbes' final claim is that the district court erred in

calculating his criminal history by factoring in one offense

level point for a prior conditional discharge sentence that he

received for pleading guilty to Unlawful Possession of Marijuana,

in violation of N.Y. Penal Law 221.05 (McKinney 1989). He

claims that this disposition was not a criminal conviction, and

therefore does not justify a point under U.S.S.G. 4A1.1(c),

which adds one point for each sentence received following

criminal conviction.

We need not reach the merits of this claim because it is

evident that no plain error occurred. Forbes points out that

excluding the challenged violation from his criminal history

category would reduce his designated sentencing range from 46-57

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months to 41-51 months. The sentence imposed, after the court

departed downward, was only 36 months. Because the sentence

Forbes received is still below the guidelines range which he

advocates as correct, we can find no plain error. See Carrozza,

4 F.3d at 87-91.

The decision of the district court is affirmed.

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