United States v. Rodriguez

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1590

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS JULIO RODRIGUEZ
aka Jose Ramirez,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Stahl, Circuit Judge.

Eileen M. Donoghue, by Appointment of the Court, for appellant.

Robert E. Richardson, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.

June 17, 1994

COFFIN, Senior Circuit Judge. Carlos Julio Rodriguez

appeals his sentence for illegal reentry into the United States

after deportation, 8 U.S.C. 1326. We affirm.

I. Factual Background

In April 1991, Rodriguez, a Colombian citizen, was deported

from Boston to Colombia. The following September, Rodriguez

reentered the United States illegally. On December 19, 1991,

agents from the Immigration and Naturalization Service (INS),

acting on a tip, found and arrested Rodriguez at a bar in

Chelsea, Massachusetts. A federal grand jury subsequently

returned a one count indictment charging Rodriguez with a

violation of 8 U.S.C. 1326(a) and (b)(2).1

On November 4, 1992, Rodriguez pled guilty to a violation of

8 U.S.C. 1326(a).2 Rodriguez' presentence report (PSR)

computed his total offense level at 21: 8 points were assigned as

the base offense level under 8 U.S.C. 1326, 16 points were

added for his previous conviction for an aggravated felony, and 3

1This statute provides, in pertinent part, that:
(a) [A]ny alien who --
(1) has been arrested and deported or excluded and deported,
and thereafter
(2) enters, attempts to enter, or is at any time found in,
the United States . . . [and]
(b)(2) whose deportation was subsequent to a conviction for
commission of an aggravated felony, such alien shall be
fined under such Title, imprisoned not more than 15 years,
or both.

2At his plea hearing, the court accepted the parties'
stipulation to consider Section (b)(2) as a sentencing factor,
and not as an element of the offense. We have since affirmed
this view. See United States v. Forbes, 16 F.3d 1294, 1300 (1st

Cir. 1994) (holding that Section (b)(2) is a sentence enhancement
factor).

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points were subtracted for acceptance of responsibility and

timely notifying authorities of his intention to plead guilty.

See U.S.S.G. 2L1.2(a), (b)(2); 3E1.1(b)(2). Taken together

with a criminal history category of III, this calculation

resulted in a recommended sentencing range of 46-57 months

imprisonment and 24-36 months supervised release.

The district court accepted the PSR recommendation, finding

that Rodriguez' two convictions for possession with intent to

distribute an illegal drug, in violation of Mass. Gen. L. ch. 94C

32A, were "aggravated felonies" within the meaning of

1326(b)(2). The court also ruled that Rodriguez' offense

occurred when he was found in the United States in December 1991,

and, therefore, that application of the November 1991 amendments

to the Sentencing Guidelines did not violate the ex post facto

clause of the Constitution. Accordingly, the court sentenced

Rodriguez to 48 months imprisonment, followed by 24 months of

supervised release. This appeal followed.

Rodriguez contends that his Massachusetts' convictions are

not "aggravated" felonies within the meaning of federal law, and

that the district court therefore erred by using them to enhance

his base offense level by 16 points. He also reiterates his

claim that the application of the November 1991 Guidelines to his

conviction violates the ex post facto clause, and that he should

have been sentenced under the Guidelines in effect in September

1991, the date of his reentry into the United States.

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II. Aggravated Felony Determination

Section 1326(b)(2) provides an enhanced penalty for deported

aliens who illegally reenter the United States following

conviction for an aggravated felony. Our cases establish that a

drug offense is an aggravated felony within the meaning of

Section 1326 and the applicable Sentencing Guidelines, U.S.S.G.

2L1.2(b)(2), if it is a "drug trafficking crime" as defined in 18

U.S.C. 924(c)(2). See United States v. Forbes, 16 F.3d 1294,

1301 (1st Cir. 1994); Amaral v. I.N.S., 977 F.2d 33, 35 (1st Cir.

1992). Under that section, a drug felony is a "drug trafficking

crime" if it is punishable under any one of three statutes: (1)

the Controlled Substances Act, 21 U.S.C. 801 et seq.; (2) the

Controlled Substances Import and Export Act, 21 U.S.C. 951 et

seq.; or (3) the Maritime Drug Law Enforcement Act, 46 App.

U.S.C. 1901 et seq.

Rodriguez argues that his state convictions are not

aggravated felonies, and therefore not subject to enhancement as

such, because they are not for "trafficking" crimes. This

argument is meritless. Rodriguez' Massachusetts convictions are

trafficking crimes for purposes of Section 1326 because they are

punishable under the Controlled Substances Act. See 21 U.S.C.

844(a) (punishing simple possession of controlled substances).3

3Rodriguez also contends that his convictions are not
trafficking crimes under state law. This argument misses the
mark. We have held that federal, not state, definitions govern
under the Guidelines. United States v. Unger, 915 F.2d 759, 762-

63 (1st Cir. 1990); United States v. Aymelek, 926 F.2d 64, 71-2

(1st Cir. 1991).

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See Forbes, 16 F.3d 1294, 1301 (state possession convictions

which would be felonies under 21 U.S.C. 844(a) treated as

aggravated felonies under U.S.S.G. 2L1.2(b)(2)).

Rodriguez argues that this conclusion unfairly converts

virtually all predicate drug crimes into aggravated felonies,

thus rendering meaningless, for drug offenses, the distinction

under Section 1326 and the applicable Guidelines between felonies

and aggravated felonies. We recognize that this definition of

"aggravated felony" may be rather harsh for drug offenders. We

are not at liberty, however, to rewrite the statutory scheme.

We therefore conclude that the district court properly added

16 points to Rodriguez' base offense level in computing his

sentence under the Guidelines.

III. Ex Post Facto Claim

Rodriguez illegally reentered the United States on September

5, 1991. At that time, the relevant Sentencing Guidelines

provided for a base offense level of 8, a 4-level increase "[i]f

the defendant previously was deported after sustaining a

conviction for a felony," U.S.S.G. 2L1.2 (Nov. 1990), and, if

the conviction was for an aggravated felony, "an upward departure

may be warranted." Id., comment (n.3).

Rodriguez was not found in the United States, however, until

December 19, 1991. Between the time of his entry and the time of

his arrest, the Guidelines were amended to increase the penalty

for a conviction under Section 1326 where deportation followed

conviction for an aggravated felony. U.S.S.G. 2L1.2(b)(2)

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(Nov. 1991). These amendments, effective November 1, 1991,

converted the discretionary choice whether to increase the

penalty for this class of defendants to a requirement, by

instructing the court to add 16 points to the calculation of

their total offense level. Id.

Rodriguez argues that the district court should have

sentenced him under the Guidelines in effect on September 5,

1991, the date he entered the United States, because that is when

he violated Section 1326. The district court's application of

the November 1991 Guidelines violates the ex post facto clause of

the Constitution, he claims, because the amendments increase the

sentence applicable at the time he committed the crime.

The government counters that 8 U.S.C. 1326(a)(2) describes

three separate occasions on which a deported alien can commit an

offense under the statute: when he or she (1) illegally enters

the United States; (2) attempts illegally to enter the United

States; or (3) is found in the United States. They point out

that the indictment explicitly charged Rodriguez, and he pleaded

guilty to, having been found in the United States on December 19,

1991, over a month and a half after the November 1991 Guidelines'

amendments.4 Application of these amendments to Rodriguez'

4Alternatively, the government urges this court to
characterize Section 1326(a) as a continuing offense. Other
courts, in discussing the application of the statute of
limitations, have come to differing conclusions regarding whether
this statute describes a continuing offense. Compare, e.g.,

United States v. DiSantillo, 615 F.2d 128, 132-37 (3d Cir. 1980)

(crime of illegal entry through recognized Immigration and
Naturalization port of entry after being arrested and deported
not a continuing offense, so as to toll applicable statute of

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offense, they contend, therefore does not violate the ex post

facto clause.

Barring any ex post facto concerns, a defendant ordinarily

should be sentenced according to the Guidelines in effect at the

time of sentencing. 18 U.S.C. 3553(a)(4); United States v.

Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990). However,

when a guideline amendment increases the punishment imposed, the

ex post facto clause of the Constitution prevents retroactive

application of the guideline to offenses committed prior to the

effective date of the amendment. In such a case, the guideline

in effect at the time the crime was committed must be used. See

U.S. Const. art. I, 9, cl.3; United States v. Molina, 952 F.2d

14, 522-23 (D.C. Cir. 1992). Determining whether application of

the November 1991 Guidelines violated the ex post facto clause

requires us to decide when Rodriguez committed the offense: when

he crossed the border on September 1991, or when he was caught,

on December 19, 1991?

As the Supreme Court has stated in interpreting a different

section of the Immigration and Nationality Act of 1952, "`[t]he

cardinal principle of statutory construction is to save and not

to destroy.' It is our duty `to give effect, if possible, to

every clause and word of a statute.'" United States v. Menasche,

limitations for as long as alien remains in the country) with

United States v. Bruno, 328 F. Supp. 815, 825 (D. Mo. 1975)

(criminal conduct of being found in the United States after
having been excluded and deported continues so long as alien is
present in the United States).
Because we conclude that Section 1326(a) describes three
separate offenses, we need not reach this issue.

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348 U.S. 528, 538-39 (1955) (citations omitted). Applying this

principle, 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. The phrase

"found in" otherwise would be surplusage, because it would be

redundant with "enters." Accord United States v. Whittaker, 999

F.2d 38, 41-43 (2d Cir. 1993); United States v. Gonzales, 988

F.2d 16, 18 (5th Cir. 1993); United States v. Alvarez-Quintero,

788 F. Supp. 132, 133-34 (D.R.I. 1992).

This construction is consistent with the legislative history

discussed in United States v. DiSantillo, 615 F.2d 128, 134-35

(3d Cir. 1980). In DiSantillo, the court noted that when

Congress reenacted the statute in 1952, it added the term

"found," but did not remove "enters." Id. at 135. In so doing,

the court concluded, Congress must have intended to broaden the

statute to include the crime committed when an alien enters the

United States surreptitiously, of which the INS would have no

official record, as well as the crimes committed by entry or

attempted entry through regular immigration procedures. There is

no other apparent reason for retaining the word "enters." Id.

The court was persuaded that the amendment was aimed at ensuring

that aliens who were not apprehended as they reentered the

country nevertheless could be prosecuted for unlawful entry

whenever they were found. See also United States v. Canals-

Jimenez, 943 F.2d 1284, 1286-89 (11th Cir. 1991) (following

DiSantillo in concluding that an alien who had sought admission

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through recognized immigration port of entry, and thus was

physically "in" the country, could not be prosecuted under the

"found in" clause, because that clause was intended to apply to

aliens who have entered surreptitiously).

In this case, regardless of when he entered the United

States, Rodriguez violated the statute when he was "found" here

on December 19, 1991, and he pled guilty to the crime of being

"found in" the United States at that time. Accordingly,

application of the November 1991 Guidelines in computing his

offense level does not violate the ex post facto clause.

The decision of the district court is therefore AFFIRMED.

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