United States v. Restrepo Aguilar

USCA1 Opinion









United States Court of Appeals
For the First Circuit
____________________

No. 95-1660

UNITED STATES OF AMERICA,

Appellee,

v.

AUGUSTO DEJESUS RESTREPO-AGUILAR,

Defendant, Appellant.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge] ___________________
____________________

Before

Torruella, Chief Judge, ___________

Rosenn, Senior Circuit Judge,* ____________________

and Lynch, Circuit Judge. _____________
____________________


Robert D. Watt, Jr., for appellant. ___________________

Margaret E. Curran, Assistant United States Attorney, with whom ___________________
Sheldon Whitehouse, United States Attorney, and Craig N. Moore, ___________________ ________________
Assistant United States Attorney, were on brief, for the United
States.

____________________

January 30, 1996
____________________




____________________

*Of the Third Circuit, sitting by designation.













LYNCH, Circuit Judge. Augusto Restrepo-Aguilar pleaded _____________

guilty to a charge of unlawful reentry into the United States

after deportation. At sentencing, the district court added

16 offense levels under U.S.S.G. 2L1.2(b)(2) to Restrepo-

Aguilar's Guidelines sentence, based on a finding that he had

been previously "deported after a conviction for an

aggravated felony." The sole issue presented is whether the

term "aggravated felony" as used in 2L1.2(b)(2) of the

Guidelines includes as a "felony" a state drug possession

offense that would be only a misdemeanor under federal law,

but is a felony under the laws of the convicting state. This

question under the Guidelines is one of first impression in

this Circuit, and we answer it in the affirmative. We hold

that the district court was required to increase the

defendant's Guidelines sentence by 16 offense levels, and so

affirm.


I

In 1985, Restrepo-Aguilar, a citizen of Colombia, was

arrested by Rhode Island authorities on a charge of violating

the state's drug laws. After cooperating with the state in

obtaining the arrests of others, he pleaded nolo contendere ____ __________

to an amended charge of simple cocaine possession, a felony

under Rhode Island law, punishable by a maximum of three

years in prison. He was sentenced to 2 years of probation.




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In December of 1988, a federal deportation warrant

issued for Restrepo-Aguilar's arrest. He was finally

apprehended on July 7, 1994, in Miami, Florida and was

subsequently deported. In January of 1995, he resurfaced

illegally in Providence, Rhode Island, where he was arrested

by Immigration and Naturalization Service agents. He

admitted that he had never applied for permission to reenter

the country. He was indicted and pleaded guilty to one count

of unlawful reentry into the United States after deportation,

in violation of 8 U.S.C. 1326.

The defendant was sentenced under 2L1.2 of the

Sentencing Guidelines.1 That guideline sets a base offense

level ("BOL") of 8 for a conviction of unlawfully entering or

remaining in the United States. The guideline then provides:

"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).2

____________________

1. Defendant was sentenced in June 1995, under the November
1994 edition of the Guidelines. All citations are to that
edition.

2. Section 2L1.2(b) implements the statutory sentence
enhancement provisions of 8 U.S.C. 1326(b), which increases
the maximum authorized term of imprisonment for aliens
convicted under that statute who previously have been
deported following a conviction for a felony or an aggravated
felony. See United States v. Forbes, 16 F.3d 1294, 1300 n.9 ___ ______________ ______
(1st Cir. 1994). The term "aggravated felony" as used in
1326(b)(2) is defined at 8 U.S.C. 1101(a)(43). That
definition is substantially the same (in relevant part) as
the one that appears in application note 7 to U.S.S.G.
2L1.2.

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The sentencing court concluded that the defendant's pre-

deportation state conviction for possession of cocaine, a

felony under Rhode Island law, qualified as an "aggravated

felony" within the meaning of 2L1.2(b)(2), and accordingly

increased defendant's BOL from 8 to 24. With a three-level

reduction for acceptance of responsibility under U.S.S.G.

3E1.1, and a criminal history category of II, defendant's

Guidelines sentencing range was 41-51 months.3 The court

imposed a final sentence of 41 months.

Restrepo-Aguilar contends that because a first-time

conviction for simple possession of cocaine is punishable

only as a misdemeanor under federal law,4 his 1985 state _______

conviction for cocaine possession cannot be classified as an

"aggravated felony" for purposes of the Sentencing

Guidelines. The government argues that an offense need not

be punishable as a felony under federal law in order to be an

"aggravated felony" under 2L1.2(b)(2) so long as the



____________________

3. In contrast, the defendant's total offense level,
adjusted for a two-level credit for acceptance of
responsibility under U.S.S.G. 3E1.1(a), would have been 6,
corresponding to a Guidelines sentencing range of 1-7 months
(assuming a criminal history category of II), had no
enhancement been applied.

4. Because a conviction under the Controlled Substances Act
for a first offense of simple possession of cocaine is
punishable by no more than one year in prison, see 21 U.S.C. ___
844(a), such a conviction would be for a Class A
misdemeanor under the general federal classification scheme,
see 18 U.S.C. 3559(a). ___

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offense is punishable as a felony under the law of the state

of conviction.


II

The controlling definition of the term "aggravated

felony" is set forth in application note 7 to U.S.S.G.

2L1.2. That commentary 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). Section

924(c)(2) provides, in turn:

[T]he term "drug trafficking crime" means 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.).

18 U.S.C. 924(c)(2) (emphasis added).

Restrepo-Aguilar contends that his 1985 cocaine

possession offense is excluded from the definition of "drug

trafficking crime" and is not an "aggravated felony" under

2L1.2(b)(2) because it would be classified as a misdemeanor

under federal law.5 The question posed, then, is whether

____________________

5. He also argues more broadly that the offense of simple
possession of cocaine is not an aggravated felony because it
does not fall within the common definition of drug

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first-time cocaine possession, "whether in violation of

federal or state law," U.S.S.G. 2L1.2, comment. (n.7), is

an "aggravated felony" if it is a felony under applicable

state law but is punishable only as a misdemeanor under the

federal Controlled Substances Act ("CSA").

Restrepo-Aguilar bases his argument on a particular

reading of the Guidelines and on the recent decision by the

Board of Immigration Appeals in In Re L-G-, Interim Decision ___________

3254, 1995 WL 582051 (BIA Sept. 27, 1995), interpreting the

term "aggravated felony" under the immigration laws. He

appropriately concedes that the BIA's decision is flatly

inconsistent with the Second Circuit's opinion in Jenkins v. _______

INS, 32 F.3d 11 (2d Cir. 1994), and that there is language in ___

various opinions by this Circuit disfavoring his position.

We believe that the text of the relevant provisions

forecloses his argument and that the Second Circuit's reading

is preferable to that of the BIA.

The defendant's interpretation is not consistent with

the definition of "aggravated felony" set forth in the

commentary to 2L1.2. His argument is contrary to the

application note's instruction that the definition is to be

applied to offenses "whether in violation of federal or state


____________________

"trafficking." We reject this contention without further
discussion, as it is clearly foreclosed by the decision of
this court in United States v. Rodriguez, 26 F.3d 4, 6 (1st ______________ _________
Cir. 1994).

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law." It also contradicts the definition of "felony"

explicitly provided in the CSA, which is referred to in the

application note.

Defendant reads 18 U.S.C. 924(c)(2) as if it defined

"drug trafficking crime" as any offense punishable as a __ _

felony under the CSA. But that is not how 924(c)(2) is ______ _____

written. The statutory definition plainly does not require

that an offense, in order to be a drug trafficking crime, be

subject to a particular magnitude of punishment if prosecuted

under the CSA, as defendant's preferred reading would

suggest. Rather, the definition requires only that the

offense be a "felony punishable" thereunder. Indeed, this

court has expressly interpreted 924(c)(2)'s definition of

"drug trafficking crime" as encompassing two separate ________

elements: (1) that the offense be punishable under the

Controlled Substances Act (or one of the other two statutes

identified); and (2) that the offense be a felony. United ______

States v. Forbes, 16 F.3d 1294, 1301 (1st Cir. 1994); see ______ ______ ___

also United States v. Rodriguez, 26 F.3d 4, 6 (1st Cir. ____ ______________ _________

1994); Jenkins, 32 F.3d at 14 (following Forbes and Amaral v. _______ ______ ______

INS, 977 F.2d 33, 36 n.3 (1st Cir. 1992)). We adhere to this ___

established interpretation and reject the defendant's

contrary construction.

Section 924(c)(2)'s definition of "drug trafficking

crime" by its terms includes "any felony" that is ___



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criminalized under the CSA. The definition does not limit

its application to offenses that would be classified as

felonies if prosecuted under federal law. Furthermore, the

CSA itself defines a felony as "any Federal or State offense

classified by applicable Federal or State law as a felony."

21 U.S.C. 802(13). Under the CSA's unambiguous definition,

a state offense (of the type within the scope of the CSA)

which is classified as a felony under the law of the

convicting state would clearly qualify as a felony for that

definition's purposes, even if the offense could be punished

only as a misdemeanor under federal law. See Forbes, 16 F.3d ___ ______

at 1301 n.10; Amaral, 977 F.2d at 36 n.3. As Judge Walker ______

has cogently observed,

Section 802(13)'s explicit reliance on state
classifications represents a Congressional choice
to include within the category of 'felony'
offenses under the Controlled Substances Act . . .
those crimes deemed serious enough by states to
warrant felony treatment within their
jurisdictions.

Jenkins, 32 F.3d at 14. _______

There is no reason to suppose that either Congress or

the Sentencing Commission, in defining "aggravated felony" by

reference to 18 U.S.C. 924(c)(2), which in turn

specifically relies on the CSA, was unaware of or chose to

dismiss the definition of "felony" provided there. Indeed,

quite the opposite is likely to be true. The CSA's primary

purpose in carving out a class of offenses as felonies is _______



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precisely the same as Congress' purpose in doing so in 8

U.S.C. 1326(b) and the Sentencing Commission's purpose in

implementing that statute in 2L1.2(b): to establish a

basis for the imposition of sentence enhancements. See, ___

e.g., 21 U.S.C. 841(b) (providing increased maximum ____

sentence for defendants with a prior felony conviction). The

Commission intended the "aggravated felony" sentence

enhancement to operate harmoniously with the specific

definition given to the term "felony" in the CSA, the very

statute by reference to which "aggravated felony" is

ultimately defined. Cf. Greenwood Trust Co. v. Commonwealth ___ ___________________ ____________

of Mass., 971 F.2d 818, 827 (1st Cir. 1992) (when a statute _________

borrows language from another statute, the two statutes

should be read consistently), cert. denied, 113 S. Ct. 974 _____ ______

(1993).

We hold that a state drug offense is properly deemed a

"felony" within the meaning of 18 U.S.C. 924(c)(2) as

incorporated by application note 7 to U.S.S.G. 2L1.2, if

the offense is classified as a felony under the law of the

relevant state, even if the same offense would be punishable

only as a misdemeanor under federal law. See 21 U.S.C. ___

802(13). In Rhode Island, a first offense of simple

possession of cocaine carries a maximum term of imprisonment

of three years, see R.I. Gen. Laws 21-28-4.01(C)(1)(a), and ___

is therefore a felony under the laws of that jurisdiction.



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See R.I. Gen. Laws 11-1-2 (defining "felony" as an offense ___

punishable by a term of imprisonment exceeding one year); cf. ___

18 U.S.C. 3559(a) (categorizing as felonies all offenses

not otherwise classified by the statutes defining the

offenses that are punishable by prison terms exceeding one

year). Restrepo-Aguilar's 1985 cocaine possession offense

was thus a felony under Rhode Island law and qualifies as

"any felony" within the meaning of 18 U.S.C. 924(c)(2).

Since that offense is also punishable under the CSA, see 21 ___

U.S.C. 844(a), it qualifies as a "drug trafficking crime"

under 924(c)(2) and hence as an "aggravated felony" for

purposes of U.S.S.G. 2L1.2(b)(2).

Beyond purely textual considerations, this result is

most consistent with the approach favored by the Sentencing

Guidelines. In measuring the seriousness of a defendant's

criminal record, the Guidelines operate on the foundational

premise that a defendant's history of criminal activity in

violation of state law is to be treated on a par with his _____

history of crimes committed in violation of federal law. To

this end, the commentary to the Guidelines' central criminal

history provision states: "[p]rior convictions [that are

relevant to a defendant's criminal history category] may

represent convictions in the federal system, fifty state

systems, the District of Columbia, territories, and foreign,

tribal, and military courts." U.S.S.G. 4A1.1, comment.



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(backg'd). This principle that criminal history cannot be

viewed through a purely federal lens is also reflected in the

commentary to the "aggravated felony" enhancement at issue

here which at bottom is nothing more than a criminal

history adjustment, albeit a severe one, for prior offenses

of a particular kind. U.S.S.G. 2L1.2, comment. (n.7)

(directing that the enhancement be applied to prior offenses

of the relevant sort "whether in violation of federal or

state law").

The Sentencing Commission fully recognized that the

seriousness of any particular state offense in a defendant's

record might be viewed differently across jurisdictional

lines. To the objection that the result reached today could

mean variations in federal criminal sentences for illegal

aliens based on whether the 50 states classify offenses as

felonies or not, the response is that any such lack of

uniformity is the consequence of a deliberate policy choice

by Congress and the Commission that we cannot disregard.

See, e.g., U.S.S.G. 4A1.2(o) (defining "felony offense" by ___ ____

reference to penalty authorized by federal or state law, such __

that determination whether offense is felony could vary from

state to state); 4B1.2, comment. (n.3) (same); cf. Jenkins, ___ _______

32 F.3d at 14.

Our result is also consistent with other provisions in

the Sentencing Guidelines that use the term "felony." The



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offense of cocaine possession is punishable in Rhode Island

by a term of imprisonment of up to three years. See R.I. ___

Gen. Laws 21-28-4.01(C)(1)(a). Even apart from the

unambiguous definition of "felony" provided in the CSA, see ___

21 U.S.C. 802(13), categorizing defendant's 1985 possession

offense as a felony is fully consistent with the definition

of that term that pervades the criminal history and prior

offense enhancement provisions scattered throughout the

Guidelines: any federal or state offense punishable under __

applicable law by a term of imprisonment of more than one

year. See U.S.S.G. 4A1.2(o); see also U.S.S.G. 2D1.1, ___ _________

comment. (n.16(a)), 2K1.3, comment. (n.4), 2K2.1, comment.

(n.5), 4A1.1, comment. (backg'd), and 4B1.2, comment. (n.3);

cf. 18 U.S.C. 3559(a). Nothing in 2L1.2(b)(2), the ___

accompanying commentary, or the related statutes requires us

to adhere to a different understanding of "felony" here.

The recent decision of the Board of Immigration Appeals

in In Re L-G-, Interim Decision 3254, 1995 WL 582051 (BIA ___________

Sept. 27, 1995), does not persuade us otherwise. The

decision in L-G- did not involve any consideration of the ____

aggravated felony sentence enhancement at issue here.6 At

stake in L-G- was, instead, the petitioner's right to apply ____


____________________

6. This court's decision in Amaral v. INS, 977 F.2d 33 (1st ______ ___
Cir. 1992) and the Second Circuit's decision in Jenkins _______
both of which, in any event, support our holding here could
be distinguished on this same ground.

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for asylum and request withholding of deportation under 8

U.S.C. 1158 & 1253(h). To be sure, the decision turned on

the definition of "aggravated felony" as set forth in 8

U.S.C. 1101(a)(43), which, in relevant part, is the same as

the definition provided in application note 7 to U.S.S.G.

2L1.2, but the relevant context was different. The BIA's

decision rested to a significant degree on policy concerns

relating to the consequences flowing from a deportation

decision or a decision on an application for asylum,7

without regard to any of the policies that inform the meaning

of "aggravated felony" in the context of the statutory prior

offense enhancement or its implementation in the Sentencing

Guidelines.8 That the BIA was persuaded by some of the

policies undergirding deportation and asylum determinations

to interpret "aggravated felony" as excluding state-

classified felonies punishable only as misdemeanors under

federal law does not convince us that Congress, in creating

____________________

7. See, e.g., L-G-, slip op. at 20 (stating concern that ___ ____ ____
alien found to have been convicted of aggravated felony might
be "barred by [the immigration statutes] from receiving
withholding of deportation, even if he faced imminent harm or
death due to persecution in his native country").

8. One of the reasons given by the BIA for disregarding the
definition of "felony" provided in the CSA is that "the term
'felony' is primarily used in 21 U.S.C. 802(13) to trigger
statutory sentence enhancement for repeat offenders," L-G-, ____
slip op. at 16, rather than "to describe offenses that are
punishable under its provisions." This distinction weighs in
favor of, not against, the use of the CSA's definition in
applying the sentence enhancement provision of U.S.S.G.
2L1.2(b)(2).

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the aggravated felony sentence enhancement, or the Sentencing

Commission, in implementing it, intended the same result.9

We decline to adopt the BIA's reasoning here.10


III

Because the cocaine possession offense for which

defendant Restrepo-Aguilar was convicted in 1985 under the

laws of Rhode Island counts as "any felony" in the requisite

sense and is criminalized by the Controlled Substances Act,

that offense is a "felony punishable under the Controlled

Substances Act" and thus falls within the definition of "drug

trafficking crime" set forth in 18 U.S.C. 924(c)(2), as

adopted in U.S.S.G. 2L1.2, comment. (n.7). Accordingly,

that offense qualifies as an "aggravated felony" for purposes

of 2L1.2(b)(2), and the district court correctly enhanced

____________________

9. Moreover, the BIA's analysis suffers from one of the same
difficulties that lead us to reject the defendant's argument
here. The BIA reads 18 U.S.C. 924(c)(2) as if that statute
required an offense to be punishable as a felony under the __ _ ______ _____
Controlled Substances Act in order to be a "drug trafficking
crime." Indeed, the BIA at several places in its decision
paraphrases 924(c)(2)'s definition in just that way. L-G-, ____
slip op. at 7, 9, 11, 13, 22-23. This alteration of the
statute's actual syntax is more than merely cosmetic, and
indeed is substantively inconsistent with the construction of
924(c)(2) given in Rodriguez, 26 F.3d at 6; Forbes, 16 F.3d _________ ______
at 1301; and Amaral, 977 F.2d at 35. ______

10. Because we are not bound by the BIA's L-G- decision in ____
any sense, we need not decide whether the term "aggravated
felony" could, in principle, bear a different interpretation
for purposes of sentence enhancement under 8 U.S.C. 1326(b)
and the Guidelines, than for purposes of the statutory
provisions concerning asylum and withholding of deportation,
8 U.S.C. 1158 & 1253(h).

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defendant's base offense level by 16 levels pursuant to that

guideline.11


Affirmed. _________









































____________________

11. Of course, if we are wrong, the Commission can correct
us by amending 2L1.2(b)(2) or the accompanying commentary.

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