USCA1 Opinion
May 1, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1057
UNITED STATES,
Appellee,
v.
FRANCISCO JAVIER MEJIAS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
____________________
Olga M. Shepard on brief for appellant. _______________
Guillermo Gil, United States Attorney, and Jeanette Mercado Rios, _____________ ______________________
Assistant United States Attorney, on Motion Requesting Summary
Disposition for appellee.
____________________
____________________
Per Curiam. Francisco Javier Mejias appeals his __________
conviction and sentence for illegal reentry into the United
States after deportation subsequent to an aggravated felony
conviction, 8 U.S.C. 1326(b)(2). We affirm.
I. Background __________
According to the Pre-Sentence Report ("PSR"),
Mejias, a citizen of the Dominican Republic, was arrested in
Rhode Island in August 1992 and pleaded nolo contendere in
state court to the charge of conspiring to violate Rhode
Island's Uniform Controlled Substances Act. R.I. Gen. Laws
21-28-1.01, et seg. (1994). He was sentenced to three years __ ___
in prison; execution of the sentence was suspended. Mejias
was deported from New York to the Dominican Republic in
February 1993. In May 1993, he arrived in Puerto Rico and
was arrested while attempting to reenter the United States
without having received permission of the Attorney General.
Counsel was appointed to represent Mejias.
At a change of plea hearing before the United
States District Court for the District of Puerto Rico, on
July 6, 1993, Mejias pled guilty to the single count of his
indictment, charging him with illegal reentry following
deportation subsequent to conviction for the commission of an
aggravated felony, in violation of 8 U.S.C. 1326(b)(2).
The PSR calculated a total offense level of 21. Starting with
a base offense level of 8, the PSR added 16 levels for
Mejias' prior conviction for an aggravated felony pursuant to
the United States Sentencing Guidelines ("U.S.S.G.")
2L1.2(b)(2). Three levels were subtracted for Mejias'
acceptance of responsibility. Based upon a criminal history
category of II and a total offense level of 21, the PSR
arrived at a guideline sentencing range of 41 to 51 months.
There were no objections to the PSR.
Prior to sentencing, Mejias filed a motion to
dismiss the indictment. He argued that his prosecution under
8 U.S.C. 1326(b)(2) violated the Constitution's ex post __ ____
facto clause. He asserted that he had been informed at the _____
time of his deportation that the maximum penalty he could
receive for illegal reentry was two years. The district
court denied the motion and sentenced Mejias on December 13,
1994, to a prison term of 41 months. Mejias appealed and
counsel was appointed to represent him on appeal.
Appellate counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), in July, 1994. ______ __________
The government moved for summary dismissal of the appeal. In
an order dated October 14, 1994, this court denied the
government's motion to dismiss and counsel's motion to
withdraw, without prejudice to re-filing of the motions after
counsel obtained and reviewed a transcript of the change of
plea hearing. Counsel has obtained and reviewed that
transcript and, finding no error in the change of plea
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proceedings, has filed a supplemental Anders brief and a new ______
motion to withdraw. The government has filed a new motion
for summary dismissal.
II. Discussion __________
The Anders brief identifies two grounds for appeal: ______
1) the ex post facto argument raised by Mejias' motion to __ ____ _____
dismiss his indictment and 2) the argument that the district
court erred in adding 16 levels to the base offense level
because Mejias' prior conviction was not an "aggravated
felony," within the meaning of U.S.S.G. 2L1.2(b)(2). For
the reasons that follow, we agree with Mejias' counsel that
both arguments are frivolous.
A. Violation of Ex Post Facto Clause. _________________________________
The Constitution's ex post facto clause bars the __ ____ _____
retrospective application of laws that materially
disadvantage a defendant. Section 1326(b)(2) went into
effect in November, 1988. Mejias was deported in 1993.
Therefore, the application of 1326 (b)(2) to his conduct
was not "retrospective" and the ex post facto clause was not __ ____ _____
violated. See United States v. Troncoso, 23 F.3d 612, 615 ___ _____________ ________
(1st Cir. 1994), (rejecting ex post facto argument where __ ____ _____
appellant "failed to demonstrate that the law is
'retrospective, that is it must apply to events occurring
before its enactment.'"), cert. denied, ___ U.S ___, 115 S.Ct ____ ______
912 (1995).
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Nor is there any support in the record for Mejias'
argument that the court is estopped from sentencing Mejias
beyond two years based upon representations by the INS at the
time of his deportation. The record includes a copy of the
INS Form I-294 that was given to Mejias at the time of his
deportation and signed by him. The form states that the
maximum sentence is fifteen years for illegal re-entry by an
alien whose deportation was subsequent to conviction for an
aggravated felony. Mejias does not contest that he received
the I-294 Form signed by him. Therefore, as there was no
government misrepresentation, Mejias has failed to satisfy a
threshold element of the estoppel doctrine. See Troncoso, ___ ________
23 F.3d at 615. Moreover, even if the INS had misinformed
Mejias of the maximum penalty for illegal reentry, the court
would not be estopped from sentencing him in excess of two
years for his purposeful felonious conduct in illegally
reentering the country. See id at 616; United States v. ___ __ ______________
Smith, 14 F.3d 662, 666 (1st Cir. 1994) (government's _____
misrepresentation regarding maximum sentence did not justify
downward departure).
B. Aggravated Felony Conviction ____________________________
In view of the complete lack of factual or legal
support for Mejias' ex post facto argument, appellate counsel __ ____ _____
identified the following alternative argument: the
sentencing court erred in applying a 16-level enhancement to
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his offense level under U.S.S.G. 2L1.2(b)(2), because the
state conviction that triggered the enhancement is not
specifically classified in the state record as an aggravated
felony. This issue was not raised before the district court.
The "Judgment of Conviction and Commitment" from
the Rhode Island Superior Court indicates only that Mejias
was convicted of conspiracy to violate the Controlled
Substances Act. No specific section of the Rhode Island Act
is cited. From the PSR, however, it is evident that
possession of cocaine with intent to distribute was at least
one aspect of the charge to which Mejias pleaded nolo
contendere.
This court recently outlined the criteria for
classifying a prior conviction as an "aggravated felony" for
purposes of U.S.S.G. 2L1.2, as follows:
"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 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
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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).
United States v. Forbes, 16 F.3d 1294, 1301 (1st Cir. 1994). ______________ ______
Mejias' state conviction meets both criteria. Even
simple possession of drugs is punishable under the federal
Controlled Substance Act. See 21 U.S.C. 844(a). A felony ___
is defined under 21 U.S.C. 802(13) as "any Federal or State
offense classified by applicable Federal or State Law as a
felony." Under Rhode Law, an offense is a felony if the
maximum authorized term of imprisonment exceeds one year.
See R.I. Gen. Laws 11-1-2 (1994). The maximum term of ___
imprisonment authorized for conspiracy to possess with intent
to deliver cocaine exceeds one year under Rhode Island law.
See R.I. Gen. Laws 21-28-4.01(A)(2)(a) and 21-28-4.08 ___
(1994). Therefore, Mejias' conviction is a felony punishable
by one of the enumerated statutes in 18 U.S.C. 924(c)(2),
and it qualifies as an aggravated felony for purposes of
U.S.S.G. 2L1.2.
We conclude that counsel, having obtained and
reviewed the transcript from the change of plea hearing, has
fully complied with her obligation under Anders to review the ______
entire record for any arguable claim. In accordance with our
obligation under Anders, we too have fully examined the ______
record. We conclude that the appeal is wholly frivolous and,
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accordingly, we grant counsel's motion to withdraw.
Appellant's conviction and sentence are affirmed. See Loc. ________ ___
R. 27.1.
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