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July 12, 1994 [NOT FOR PUBLICATION]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.
-2-
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
-3-
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).
-4-
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.
-5-