June 20, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2235
UNITED STATES,
Appellee,
v.
LOUIS S. SIMON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
Stahl, Circuit Judge.
Louis S. Simon on brief pro se.
Edwin J. Gale, United States Attorney, and Margaret E. Curran,
Assistant United States Attorney, on brief for appellee.
Per Curiam. In this 28 U.S.C. 2255 petition, Louis
Simon advances two challenges to the calculation of his
sentence under the Sentencing Guidelines. Specifically, he
alleges that a two-level enhancement under 2C1.1(b)(1) (for
committing an offense involving "more than one bribe or
extortion") and a three-level enhancement under 3B1.1(b)
(for being a "manager or leader" of criminal activity that
"involved five or more participants or was otherwise
extensive") were each imposed in violation of the Ex Post
Facto Clause. Assuming arguendo that petitioner is not
precluded from raising these issues in light of his waiver of
the right to appeal in his plea agreement, we find each
contention without merit.
The latter argument is expressly foreclosed by this
court's decision in United States v. Ruiz-Batista, 956 F.2d
351 (1st Cir.), cert. denied, 113 S. Ct. 105 (1992). We
there held that, because the pre-1990 Introductory Commentary
to Chapter 3, Part B could be deemed ambiguous, Amendment 345
served to clarify this passage and so could properly be
applied to offenses occurring prior to November 1990. See,
e.g., Isabel v. United States, 980 F.2d 60, 62 (1st Cir.
1992) ("clarifications" of Guidelines may be applied
retroactively; "substantive changes" may not).
The former argument is likewise unavailing. Contrary to
petitioner's premise, the district court was entitled under
the 1989 Guidelines to consider "relevant conduct" under
1B1.3 for purposes of determining whether "more than one
bribe or extortion" had occurred.1 At all relevant times,
1B1.3(a) provided that, unless otherwise specified, specific
offense characteristics (of which the two-level enhancement
here is one) were to be determined on the basis of the
following:
solely with respect to offenses of a character for
which 3D1.2(d) would require grouping of multiple
counts, all such acts and omissions that were part
of the same course of conduct or common scheme or
plan as the offense of conviction.
1B1.3(a)(2). The district court determined that
petitioner's other extortionate episodes satisfied these
criteria; petitioner has not disputed this finding. As of
1989,2 extortion (a 2C1.1 offense) was included in the
list of offenses subject to grouping. And Application Note 2
to 1B1.3, as it existed in 1989, specifically stated that
subsection (a)(2) "applies to offenses of types for which
convictions on multiple counts would be grouped together
pursuant to 3D1.2(d); multiple convictions are not
required." (Emphasis added). The 1990 and 1991 amendments
1. Although the words "or extortion" were added to
2C1.1(b)(1) only after petitioner's extortionate conduct had
been committed, see U.S.S.G., App. C, Amend. 367 (1991), he
has raised no argument that this provision is inapplicable.
We therefore do not address the issue, other than to note
that one court has applied Amendment 367 retroactively. See
United States v. Loftus, 992 F.2d 793, 799 (8th Cir. 1993).
2. See U.S.S.G., App. C., Amend. 121 (1989).
-3-
to Note 2, upon which petitioner apparently relies, served
only to reinforce this interpretation. See U.S.S.G., App.
C., Amends. 309 & 389. For these reasons, the district
court's consideration of relevant conduct for purposes of
applying the 2C1.1(b)(1) enhancement entailed no violation
of the Ex Post Facto Clause.
Affirmed.
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