United States v. Cuevas

United States Court of Appeals
For the First Circuit

No. 95-1730

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL ANTONIO CUEVAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Chief Judge,

Rosenn, Senior Circuit Judge,*

and Lynch, Circuit Judge.

Louis B. Abilheira for appellant.

Margaret E. Curran, Assistant United States Attorney, with

whom Sheldon Whitehouse, United States Attorney, and Edwin J.

Gale, Assistant United States Attorney, were on brief, for the

United States.

February 2, 1996

*Of the Third Circuit, sitting by designation.

LYNCH, Circuit Judge. Before he was convicted for being

illegally present in the United States in violation of 8

U.S.C. 1326, Rafael Antonio Cuevas, a citizen of the

Dominican Republic, had three separate encounters with the

Rhode Island criminal justice system. The primary question

in this sentencing appeal is whether the disposition of at

least one of Cuevas' state offenses was a "conviction" for an

"aggravated felony" under the prior offense enhancement of

U.S.S.G. 2L1.2(b)(2) (Nov. 1994). Cuevas says that the

enhancement does not apply to him, arguing that one of the

offenses was not a "conviction" under state law, and that the

others were not "aggravated felonies." We hold otherwise, on

the grounds that the definition of "conviction" is a matter

of federal, not state, law and that Cuevas' reading of the

term "aggravated felony" is foreclosed by a recent decision

of this court. Cuevas falls within the group as to whom

Congress and the Sentencing Commission intended longer prison

terms illegal aliens previously deported after aggravated

felony convictions and so we affirm his sentence.

Facts

Each of the three times that Cuevas faced charges under

the criminal law in Rhode Island, he submitted a plea of nolo

contendere, his plea was accepted, he was judged guilty of

the crime charged, and he was sentenced. In 1983 he received

three years probation for breaking and entering into a

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building in the nighttime with intent to commit larceny; in

1984 he was sentenced to a year in prison plus probation for

possession of cocaine; and in 1986 he was sentenced to two

years probation for possession of cocaine.

Cuevas was deported in 1989. He returned illegally in

1990, then was arrested again in 1994 on another Rhode Island

charge of cocaine possession. Once again, he pleaded nolo

and was sentenced to probation. While serving that term of

probation, he was found in the United States by federal

authorities. He was subsequently indicted in federal court

on a charge of having been found in the United States without

obtaining the consent of the Attorney General, in violation

of 8 U.S.C. 1326. He pleaded guilty and was sentenced to

fifty-seven months in prison under U.S.S.G. 2L1.2. His

appeal raises two challenges to his sentence.

The "Aggravated Felony" Enhancement

As in many sentencing appeals, the consequences of this

appeal to the defendant are not negligible. The district

court imposed a sentence of fifty-seven months.1 Cuevas

1. Section 2L1.2 of the Guidelines, which governs
defendant's offense of conviction, sets a base offense level
of 8. The district court then added sixteen levels under
subsection (b)(2) and subtracted three levels for acceptance
of responsibility under 3E1.1, producing a total offense
level of 21. Charted against a criminal history category of
IV, that offense level yielded a sentencing range of 57-71
months; the district court imposed sentence at the bottom of
the range.

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says that he should serve no more than twenty-one months.2

He argues that the 16-level enhancement he received under

2L1.2(b)(2) of the Guidelines3 for having previously been

"deported after a conviction for an aggravated felony" cannot

stand, because neither of the two cocaine possession offenses

he committed prior to his deportation was a "conviction for

an aggravated felony."4 He contends that his first

2. While Cuevas asserts that 2L1.2(b)(2) does not apply to
him, he concedes that his BOL of 8 was subject at least to a
4-level increase under 2L1.2(b)(1). Subtracting two levels
for acceptance of responsibility under 3E1.1(a), he would
calculate his total offense level to be 10, corresponding to
a sentencing range of 15-21 months, given a criminal history
category of IV.

3. Under that guideline, defendants convicted under 8 U.S.C.
1326 who previously have been "deported after a conviction
for an aggravated felony" are subject to a substantial
increase in their sentences:

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

U.S.S.G. 2L1.2(b)(2) (Nov. 1994). Application note 7 to
2L1.2 provides in relevant part:

"Aggravated felony," as used in subsection (b)(2),
means . . . 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); . . . or any
attempt or conspiracy to commit any such act. The
term "aggravated felony" applies to offenses
described in the previous sentence whether in
violation of federal or state law . . . .

U.S.S.G. 2L1.2, comment. (n.7) (Nov. 1994).

4. Defendant also asserts that his 1983 offense of breaking
and entering cannot be characterized as an "aggravated
felony." As the government does not contest this point, we

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violation was not itself an "aggravated felony," and that the

disposition of his second drug offense, to which he pleaded

nolo and for which he received a sentence of probation, was

not a "conviction" under Rhode Island law. We reject both

prongs of Cuevas' challenge.

A. Whether the 1986 Disposition Was a "Conviction"

Cuevas assumes that whether the disposition in 1986 of

his second cocaine possession offense is to be considered a

"conviction" for purposes of the Guidelines is a matter of

Rhode Island law. He posits that he was not "convicted" of

that offense under Rhode Island law and so it cannot be a

conviction for purposes of Guidelines 2L1.2.5 This

assumption is unfounded. In this Circuit and others, courts

have consistently held that whether a particular disposition

treat it as conceded.

5. He relies on R.I. Gen. Laws 12-18-3(a) (1994), which
provides:

Whenever any person shall be arraigned before the
district court or superior court, and shall plead
nolo contendere, and the court places the person on
probation . . ., then upon the completion of the
probationary period, and absent a violation of the
terms of the probation, the plea and probation shall
not constitute a conviction for any purpose.
Evidence of a plea of nolo contendere followed by a
period of probation, completed without violation of
the terms of said probation, may not be introduced
in any court proceeding, except that records may be
furnished to a sentencing court following the
conviction of an individual for a crime committed
subsequent to the successful completion of probation
on the prior offense.

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counts as a "conviction" in the context of a federal statute

is a matter of federal determination.6 Under applicable

federal standards, Cuevas was clearly "convicted" with

respect to his 1986 cocaine possession offense. As that

offense was an "aggravated felony," his 1989 deportation was

"after a conviction" for at least one aggravated felony, and

the enhancement of 2L1.2(b)(2) was properly applied.

In Molina v. INS, 981 F.2d 14 (1st Cir. 1992), this

court addressed the meaning of a statute limiting the

availability of amnesty from deportation to illegal aliens

who have "not been convicted of any felony" while in the

United States. 8 U.S.C. 1255a(a)(4)(B). The petitioner in

that case, an illegal alien, admitted that he had twice

pleaded nolo contendere and been sentenced to probation on

felony drug charges under Rhode Island law. Citing the same

provision of Rhode Island law upon which Cuevas relies here,

see R.I. Gen. Laws 12-18-3, the petitioner argued that a

nolo plea to a drug charge followed by a sentence of straight

probation was not treated as a "conviction" under state law

and, therefore, should not be considered so for purposes of

6. The particular guideline at issue here, 2L1.2,
implements a statutory penalty enhancement found within the
immigration laws. See 8 U.S.C. 1326(b); United States v.

Restrepo-Aguilar, F.3d , , No. 95-1660, slip op. at

3 n.2 (1st Cir. Jan. 30, 1996). Thus, our understanding of
the term "conviction" is informed both by the law governing
immigration offenses as well as the law under the Guidelines
governing the federal sentencing of those offenses.

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federal law. Molina, 981 F.2d at 19. For the court, Judge

(now Justice) Breyer rejected this argument. The court

specifically held that the term "conviction" is a matter of

federal, not state, definition. Molina, 981 F.2d at 19-20;

see also White v. INS, 17 F.3d 475, 479 (1st Cir. 1994) ("As

we have held before, federal law defines the term

'conviction' as it is used in the immigration context."

(citing Molina, 981 F.2d at 19)). The court noted that this

Circuit, forty years earlier, had held that "the meaning of

the word 'convicted' in the federal immigration law is a

federal question." Id. at 19-20 (quoting Pino v. Nicolls,

215 F.2d 237, 243 (1st Cir. 1954) (Magruder, J.) (internal

quotation marks omitted), rev'd on other grounds, 349 U.S.

901 (1955) (per curiam)).7

We follow Molina and Pino and hold that the meaning of

the word "conviction" in 2L1.2(b)(2) of the Sentencing

Guidelines, which implements 8 U.S.C. 1326(b), a provision

found within the immigration laws, is to be determined in

accordance with federal law. See also White, 17 F.3d at 479;

Chong v. INS, 890 F.2d 284 (11th Cir. 1989) (per curiam);

accord Wilson v. INS, 43 F.3d 211, 215 (5th Cir.) (per

7. The Supreme Court in its Pino decision expressed no

disagreement with Judge Magruder's statement that the meaning
of "conviction" is a federal question, but found that the
conviction at issue had not attained "finality." See Pino,

349 U.S. at 901; Wilson v. INS, 43 F.3d 211, 215 (5th Cir.)

(per curiam), cert. denied, 116 S. Ct. 59 (1995); Molina, 981

F.2d at 20.

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curiam), cert. denied, 116 S. Ct. 59 (1995); Ruis-Rubio v.

INS, 380 F.2d 29 (9th Cir.) (per curiam), cert. denied, 389

U.S. 944 (1967).

Support for this conclusion comes from outside the

context of immigration statutes as well. For example, the

Seventh Circuit has recently held, in applying the penalty

enhancement provisions of the Controlled Substances Act, 21

U.S.C. 841(b)(1)(B), that a plea of guilty to a state

felony offense followed by a sentence of probation8

constitutes a "prior conviction," even though that

disposition would not be so deemed under the law of the

convicting state. See United States v. McAllister, 29 F.3d

1180, 1184 (7th Cir. 1994).9 Similarly, in 1983 this court

held that a defendant who had entered a nolo contendere plea

and was sentenced to probation under Rhode Island law had

been "convicted" of a crime for purposes of the federal

8. For purposes of determining whether a state disposition
is a "conviction" as a matter of federal law, there is no
meaningful distinction between a plea of guilty followed by
probation and a plea of nolo contendere followed by

probation. United States v. Bustamante, 706 F.2d 13, 15 (1st

Cir.), cert. denied, 464 U.S. 856 (1983); cf. Sokoloff v.

Saxbe, 501 F.2d 571, 574-75 (2d Cir. 1974) (stating principle

in context of 21 U.S.C. 824(a)(2) license revocation case).

9. Other Circuits are in agreement with McAllister that

federal law governs the meaning of "conviction" in the
federal drug laws. See United States v. Mejias, 47 F.3d 401,

403-04 (11th Cir. 1995) (plea of nolo in state court, even

with adjudication withheld, is conviction for federal
purposes); United States v. Meraz, 998 F.2d 182, 183 (3d Cir.

1993); United States v. Campbell, 980 F.2d 245, 250 n.6 (4th

Cir. 1992), cert. denied, 113 S. Ct. 2446 (1993).

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felon-in-possession-of-a-firearm statute, 18 U.S.C.

922(h)(1), even though the event did not amount to a

"conviction" under state law. United States v. Bustamante,

706 F.2d 13, 14-15 (1st Cir.) (Breyer, J.), cert. denied, 464

U.S. 856 (1983).

The decisions in Bustamante and, to a lesser degree, in

McAllister both were based in part on the Supreme Court's

decision in Dickerson v. New Banner Institute, Inc., 460 U.S.

103 (1983). In Dickerson, a defendant who had pleaded guilty

to a state offense, served a term of probation, and received

an expungement of his record argued that he had not been

"convicted" of that offense. The Court did not agree.

Observing that a defendant "cannot be placed on probation if

the court does not deem him to be guilty of a crime," id. at

113-14, the Court held that the meaning of "conviction" for

purposes of the federal gun control statutes is a federal

matter:

Whether one has been "convicted within the language
of [a federal] statute[] is necessarily . . . a
question of federal, not state, law, despite the
fact that the predicate offense and its punishment
are defined by the law of the State.

Id. at 111-12.

It is true, of course, that the particular outcome

reached in Dickerson under the federal gun control laws was

effectively abrogated by Congress in May 1986, when it

amended 18 U.S.C. 921(a)(20) to read as it currently does.

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That congressional action, however, reflects not a

disagreement with the Court's reasoning, but merely that

Congress determined that its legislative objectives would be

better served by defining "conviction" by reference to state

law. See McAllister, 29 F.3d at 1184-85 ("[W]hile

interpreting federal statutes is a question of federal law,

Congress can make the meaning of a statute dependent on state

law."). The decisions in Dickerson and Bustamante still

stand for the proposition that, absent legislative indication

to the contrary, the meaning of "conviction" for purposes of

a federal statutory scheme is to be determined under

prevailing federal law. See Yanez-Popp v. INS, 998 F.2d

231, 236 (4th Cir. 1993) ("[Dickerson] still stands for the

general proposition that federal law governs the application

of Congressional statutes in the absence of a plain language

to the contrary."); cf. McAllister, 29 F.3d at 1185 (treating

Dickerson as still authoritative, outside context of gun

laws, for principle that guilty plea plus probation equals

conviction under federal law). Congress' decision to

overrule the particular result reached in Dickerson simply

reflects a deliberate choice to define "conviction" as used

in a federal gun statute by reference to state law.

Congress has not made the same choice with respect to

the immigration laws. See Wilson, 43 F.3d at 215; Yanez-

Popp, 998 F.2d at 235; see also Molina, 981 F.2d at 22 ("Of

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course, federal gun control law is not federal immigration

law."). Since the May 1986 enactment of the statutory

amendment to the gun control laws that effectively abrogated

Dickerson, the courts including this one, see White, 17

F.3d at 479; Molina, 981 F.2d at 19 have continued to

define "conviction" according to uniform federal standards

for purposes of the laws governing immigration offenses. If

Congress had disapproved of these cases, it surely could have

amended the immigration laws in the same fashion it did the

firearms statute. That Congress has chosen not to do so

reinforces our conclusion that "conviction" in the context of

the laws governing immigration offenses, including federal

sentencing for those offenses, remains a matter of federal

definition.

The disposition of Cuevas' 1986 state cocaine possession

offense clearly falls within the scope of the term

"conviction," federally understood. This is true both as a

matter of Guidelines interpretation and, more broadly, under

the law governing immigration offenses. Although the

particular guideline at issue here ( 2L1.2) does not define

"conviction," the guideline that contains the general

instructions for assessing a defendant's criminal history

does provide clear guidance. See U.S.S.G. 4A1.2. That

guideline specifically provides that the phrase "'[c]onvicted

of an offense' . . . means that the guilt of the defendant

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has been established, whether by guilty plea, trial, or plea

of nolo contendere." U.S.S.G. 4A1.2(a)(4) (Nov. 1994).10

Relying in part on 4A1.2, this court held in United

States v. Pierce, 60 F.3d 886 (1st Cir. 1995), petition for

cert. filed (Oct. 19, 1995) (No. 95-6474), that a prior state

"conviction" is established for Guidelines purposes by "a

guilt-establishing event (such as a plea where a defendant

states that he does not wish to contest the charges)." Id.

at 892 (plea of nolo, even if followed by a withheld

adjudication, constitutes a "conviction" for federal

sentencing purposes); see also United States v. Jones, 910

F.2d 760, 761 (11th Cir. 1990) (per curiam) (same). Here,

there is no dispute that whether or not Cuevas' second

cocaine offense could be considered a "conviction" under

Rhode Island law, he was indeed adjudged guilty of that crime

following his nolo plea and was sentenced to probation based

on that plea. Cf. Dickerson, 460 U.S. at 113-14 ("[O]ne

cannot be placed on probation if the court does not deem him

to be guilty of a crime."). It seems clear under the

10. Although the direct applicability of this definition is
limited to the "purposes of [ 4A1.2]" itself, the purposes

underlying the Guidelines' criminal history computation
provisions are the same as the purpose behind the prior
offense enhancement contained in 2L1.2(b)(2) i.e., to

provide increased sentences for defendants who have
demonstrated recidivist tendencies. The guidance given in
4A1.2 is instructive, if not dispositive.

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Guidelines, then, that Cuevas was "convicted" of the 1986

cocaine offense.

Furthermore, even outside the specific context of the

Guidelines, the law is plain that a state's acceptance of a

defendant's plea of nolo contendere on a drug charge followed

by imposition of a probationary sentence counts as a

"conviction" for purposes of the statutes relating to

immigration offenses. White, 17 F.3d at 479;11 Molina, 981

F.2d at 18; Ruis-Rubio, 380 F.2d at 29-30. We conclude that

Cuevas was "convicted" in 1986 of his second cocaine offense,

both within the meaning of the Guidelines and within the

broader context of the laws governing immigration offenses.

11. In White, we said that a disposition meets the federal

definition of "conviction" for purposes of the laws governing
immigration offenses if:

(1) a judge or jury has found the alien guilty or he
[or she] has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to
warrant a finding of guilty;
(2) the judge has ordered some form of punishment,
penalty, or restraint on the person's liberty to be
imposed . . .; and
(3) a judgment of adjudication of guilt may be
entered if the person violates the terms of his [or
her] probation or fails to comply with the
requirements of the court's order, without
availability of further proceedings regarding the
person's guilt or innocence of the original charge.

White, 17 F.3d at 479 (quoting Matter of Ozkok, Interim

Decision 3044, 19 I. & N. Dec. 546, 551-52 (B.I.A. 1988));
see also Wilson, 43 F.3d at 213-14 (adopting Ozkok); Molina,

981 F.2d at 18 (quoting Ozkok). All of these factors are

satisfied by the disposition of Cuevas' 1986 cocaine
possession offense.

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Once the disposition of Cuevas' second cocaine offense

is recognized to be a conviction, it clearly constitutes an

"aggravated felony" under U.S.S.G. 2L1.2(b)(2). An

"aggravated felony" includes any "drug trafficking crime"

within the meaning of 18 U.S.C. 924(c)(2). U.S.S.G.

2L1.2, comment. (n.7). A "drug trafficking crime" in turn

encompasses, inter alia, any offense that is both (1) a

felony and (2) punishable under the Controlled Substances Act

(21 U.S.C. 801 et seq.). See 18 U.S.C. 924(c)(2); United

States v. Restrepo-Aguilar, F.3d , , No. 95-1660,

slip op. at 7 (1st Cir. Jan. 30, 1996); United States v.

Forbes, 16 F.3d 1294, 1301 (1st Cir. 1994). Here, the

defendant's second offense of simple possession of cocaine

undoubtedly qualifies as a felony in the requisite sense.

Forbes, 16 F.3d at 1301 (explaining that a second drug

possession offense is punishable as a felony under federal

law).12 And cocaine possession is, of course, punishable

under the Controlled Substances Act. See 21 U.S.C. 844(a).

Thus, the offense falls within the definition of "drug

12. The possession offense, which was punishable under Rhode
Island law by a maximum of three years imprisonment, see R.I.

Gen. Laws 21-28-4.01(C)(1)(a), is also a felony under state
law, see R.I. Gen. Laws 11-1-2 (defining "felony" as an

offense punishable by a term of imprisonment exceeding one
year). Thus, regardless whether the offense would have been
punishable as a felony under federal law, the offense
qualifies as a felony for purposes of the definition of "drug
trafficking crime." See Restrepo-Aguilar, F.3d at ,

slip op. at 9.

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trafficking crime" under 18 U.S.C. 924(c)(2), and is an

"aggravated felony" within the meaning of U.S.S.G.

2L1.2(b)(2) and application note 7. The district court,

therefore, properly increased the defendant's base offense

level by 16 levels.

B. Whether the 1984 Offense Was a "Felony"

Even were one to assume that the disposition of Cuevas'

1986 cocaine offense was not a "conviction," his challenge to

the application of 2L1.2(b)(2) would fail, because his 1984

conviction for cocaine possession was itself for an

"aggravated felony." As to his 1984 cocaine offense, Cuevas

does not dispute that he was "convicted." Rather, he argues

that, while the offense was a felony under Rhode Island law,

it would have been punishable only as a misdemeanor if

prosecuted under federal law, and therefore could not be a

"felony," nor a "drug trafficking crime," nor an "aggravated

felony" for purposes of 2L1.2(b)(2). We recently rejected

precisely this argument, however, in United States v.

Restrepo-Aguilar, F.3d , No. 95-1660 (1st Cir. Jan. 30,

1996). Thus, even apart from Cuevas' 1986 cocaine possession

offense, the district court properly enhanced defendant's

sentence by 16 levels in view of his 1984 offense, which was

itself an "aggravated felony" under 2L1.2(b)(2).

Criminal History Category Computation

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Cuevas argues that the district court erroneously added

two points to his Guidelines criminal history computation

based on a finding that defendant had committed his federal

offense of conviction while under a sentence of probation

imposed by the Rhode Island state court for a 1994 state drug

offense. See U.S.S.G. 4A1.1(d) (Nov. 1994) ("Add 2 points

if the defendant committed the instant offense while under

any criminal justice sentence, including probation . . . .").

Defendant contends that because he illegally reentered the

United States in 1990, he could not have committed that

offense while under his 1994 state probationary sentence.

This argument has no more than superficial appeal.

The unambiguous terms of the statute under which Cuevas

was convicted establish that a deported alien who illegally

reenters and remains in the United States can violate the

statute at three different points in time: when he "enters,"

"attempts to enter," or when he "is at any time found in"

this country. 8 U.S.C. 1326(a). As was said in United

States v. Rodriguez, 26 F.3d 4 (1st Cir. 1994), "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." Id. at 8.

Cuevas was indicted specifically for the offense of

being "found" in the United States in violation of 1326(a).

That was the charge to which he pleaded guilty. Thus, even

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though defendant illegally reentered the United States in

1990, he committed his 1326(a) offense in 1995, when he was

"found." Rodriguez, 26 F.3d at 8. He was unquestionably

serving a criminal probationary sentence for his 1994 state

drug conviction at that time. There was no error in the

district court's application of U.S.S.G. 4A1.1(d).

Affirmed.

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