UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1116
UNITED STATES OF AMERICA,
Appellee,
v.
OMAR MARTIN ZAPATA, a/k/a OMAR MARTIN ZAPATA-MEDINA,
a/k/a OMAR ZAPATA MARTIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Boudin, Circuit Judges.
Lenore Glaser on brief for appellant.
A. John Pappalardo, United States Attorney, and Jeanne M.
Kempthorne, Assistant United States Attorney, on brief for
appellee.
July 19, 1993
SELYA, Circuit Judge. In this criminal appeal,
SELYA, Circuit Judge.
defendant-appellant Omar Martin Zapata-Medina (Zapata), an alien,
claims that the court below impermissibly "double counted" in
calculating the guideline sentencing range (GSR) applicable to
his case. Concluding that Zapata's sentence was lawfully
constituted, we affirm.
I
The facts relevant to this appeal are not disputed.
The government deported Zapata in 1990, following his conviction
on a state drug-trafficking charge for which he served 142 days
in prison (the remainder of his term of immurement having been
suspended). Under applicable federal law, Zapata's prior
conviction is classified as an aggravated felony. See 8 U.S.C.
1101(a)(43). The deportation did not stick: Zapata returned to
the United States sub rosa in 1992. Once apprehended, he pled
guilty to a charge that he had violated 8 U.S.C. 1326(a) &
(b)(2).1
At sentencing, the district court calculated Zapata's
offense level and criminal history category (CHC) in the manner
directed by the federal sentencing guidelines.2 The court
1These subsections stipulate in the aggregate that any
"alien who . . . has been arrested and deported . . ., and
thereafter . . . is . . . found in . . . the United States
[without the express consent of the Attorney General, and] . . .
whose deportation was subsequent to a conviction for commission
of an aggravated felony, . . . shall be [punished as provided]."
2As a matter of general interest, we note that Zapata was
sentenced on December 1, 1992; hence, the November, 1992 version
of the guidelines applied. See United States v. Harotunian, 920
F.2d 1040, 1041-42 (1st Cir. 1990) (directing that, except where
2
started with a base offense level of eight, see U.S.S.G.
2L1.2(a), increased the offense level to twenty-four, see
U.S.S.G. 2L1.2(b)(2) (directing a sixteen-level increase for a
defendant who has entered the United States unlawfully following
deportation "after a conviction for an aggravated felony"), and
subtracted three levels for acceptance of responsibility, see
U.S.S.G. 3E1.1, thereby reaching an adjusted offense level of
twenty-one.
The district court's calculation of Zapata's CHC lies
at the heart of this appeal. Under U.S.S.G. 4A1.1(b), two
criminal history points are to be added "for each prior sentence
of imprisonment" of sixty days or more. The term "prior
sentence" means "any sentence previously imposed upon
adjudication of guilt, whether by guilty plea [or otherwise], for
conduct not part of the instant offense." U.S.S.G.
4A1.2(a)(1). The district court invoked this provision, adding
two points to Zapata's criminal history score by reason of the
prior narcotics conviction (notwithstanding that the prior
conviction had already been used to ratchet up his offense
level). The two criminal history points boosted appellant over
the line into CHC II and upped the GSR to 41-51 months.
After the district court sentenced appellant to forty-
necessary to avoid ex post facto problems, "a defendant is to be
punished in accordance with the guidelines in effect at
sentencing"). Although the district court signalled an intention
to use the November, 1991 version of the guidelines, this appears
to have been a slip of the tongue. Because the district court's
calculations faithfully track the November, 1992 version, we
disregard the lapsus linguae.
3
one months in prison, this appeal arose. In it, Zapata assigns
error solely to the double counting of his original narcotics
conviction.
II
In the sentencing context, double counting is a
phenomenon that is less sinister than the name implies. The
practice is often perfectly proper. This case illustrates the
point: the double counting in which the district court engaged
did not stray into forbidden territory. Rather, the court's
methodology carefully tracked the Sentencing Commission's
interpretive comment, which states specifically that an offense
level increase for a prior felony conviction under section
2L1.2(b) "applies in addition to any criminal history points
added for such conviction in Chapter Four, Part A (Criminal
History)." U.S.S.G. 2L1.2, comment. (n.5) (emphasis supplied).
As a general rule, courts should strive to apply the guidelines
as written, giving full force and effect to the Sentencing
Commission's interpretive commentary and application notes. See
Stinson v. United States, 113 S. Ct. 1913, 1915 (1993); United
States v. Jones, F.2d , (1st Cir. 1993) [No. 93-1189,
slip op. at 6]; see also United States v. Williams, 954 F.2d 204,
206 (4th Cir. 1992) (approving double counting on the basis that
the sentencing guidelines must be "applied as written").
Although there are exceptions to the general rule, see, e.g.,
Stinson, 113 S. Ct. at 1915 (explaining that commentary may be
disregarded if "it violates the Constitution or a federal
4
statute, or is inconsistent with, or a plainly erroneous reading
of, [a] guideline"); United States v. Fiore, 983 F.2d 1, 2 (1st
Cir. 1992) (stating that courts "should defer to the Commission's
suggested interpretation of a guideline provision unless the
Commission's position is arbitrary, unreasonable, inconsistent
with the guideline's text, or contrary to law"), cert. denied,
113 S. Ct. 1830 (1993), no such exception applies in this
instance. To the contrary, note 5 strikes us as fully consonant
with constitutional understandings, relevant statutory law, and
the text of the applicable guideline provisions.
Furthermore, the case law offers a ringing endorsement
for the district court's use of double counting in the
circumstances at hand. Indeed, in United States v. Adeleke, 968
F.2d 1159 (11th Cir. 1992), the Eleventh Circuit flatly rejected
a challenge virtually identical to that mounted by Zapata.3 The
Adeleke court determined that the Sentencing Commission intended
a prior felony conviction to be used in calculating both the
offense level and the CHC in a Title 8 case. See id. at 1161.
The court found support for this conclusion not only in the
Commission's interpretive commentary but also in the sentencing
3Adeleke involved an alien found in the United States after
he had been deported following an earlier conviction for a
garden-variety "felony." See 8 U.S.C. 1326(b)(1). In
contrast, the case before us involves 8 U.S.C. 1326(b)(2),
which pertains to an alien convicted of an "aggravated felony"
prior to deportation. Because the only material difference
concerns the seriousness of the prior felony conviction, we think
that "(b)(1)" cases, like Adeleke, are relevant authority when a
court ponders the permissibility of double counting in a "(b)(2)"
case.
5
calculus itself. In this respect, the court viewed the use of
the same conviction for "conceptually separate notions" about
sentencing to be permissible, explaining that the criminal
history adjustment is "designed to punish likely recidivists more
severely, while the [offense level] enhancement . . . is designed
to deter aliens who have been convicted of a felony from re-
entering the United States." Id. (citation omitted).
In United States v. Campbell, 967 F.2d 20, 22-23 (2d
Cir. 1992), a case involving an alien convicted under the statute
at issue here but sentenced pursuant to an earlier, somewhat
different version of the guidelines, the Second Circuit employed
a similar rationale to sustain the two-fold use of a prior
conviction. The district court double counted a previous
aggravated felony conviction in calculating the offense level and
CHC, respectively, for an alien who, like Zapata, unlawfully
reentered the United States. Id. at 23. The court of appeals
affirmed, noting that, although the prior conviction had been
used twice in constructing the defendant's sentence, the two
usages measured different things: on one occasion, the offense
level, which represents the Sentencing Commission's judgment as
to the wrongfulness of the unlawful entry under the attendant
circumstances; and on the second occasion, the CHC, which
estimates the likelihood of recidivism with respect to the
particular alien who achieves the illegal reentry. Id. at 24-25.
Adeleke and Campbell mirror the analytic approach
adopted by this court in United States v. Sanders, 982 F.2d 4
6
(1st Cir. 1992), cert. denied, 61 U.S.L.W. 3818 (1993). There,
we found double counting to be permissible because the guideline
in question plainly directed the court to use a single factor a
conviction for carrying a firearm in the course of a drug crime
in two different ways: first, to calculate the offense level of
an armed career criminal, and second, to calculate the criminal's
CHC. See id. at 6.
We see no reason to retreat from these principles or to
skirt their application in the instant case. Congress has
delegated to the Sentencing Commission the twin tasks of
determining (1) which factors should be considered in punishing
and deterring criminals, and (2) the methodology by which
punishment-related and deterrence-related factors should be taken
into account in constructing a particular sentence. See United
States v. La Guardia, 902 F.2d 1010, 1015 (1st Cir. 1990). In a
carefully calibrated scheme aimed at producing sentencing ranges
that will differ depending upon the existence and nature of a
prior felony conviction, section 2L1.2 expresses two things: (1)
the Commission's determination that the incidence and attributes
of a prior felony conviction should be weighed by courts in
sentencing a special class of aliens who have unlawfully
reentered the United States, and (2) the Commission's related
decision that the methodology best suited to achieving both
punishment and deterrence is to consider the relevant aspects of
such a conviction in calculating not only the offense level but
7
also the CHC.4
We have said enough on this score. Since the
sentencing scheme that the Commission has devised for the offense
of conviction is plausible as a whole and not inconsistent with
statutory law or constitutional precepts, we cannot substitute
our judgment for that of the Commission. This means, of course,
that we can second-guess neither the Commission's determination
that the offense of unlawful reentry subsequent to perpetrating
an aggravated felony is sufficiently more serious than the
commission of the same offense while toting less weighty baggage
and, thus, warrants greater punishment, nor its allied
determination that an alien who, having been deported following a
conviction for an aggravated felony, and having exhibited a
willingness to flout our laws again by reentering the country
without permission, may be more likely to commit serious crimes
than an alien who unlawfully reenters this country with no
criminal record or with a less sullied record, and, thus,
deserves a sentence possessing greater deterrent impact. Cf.,
e.g., id. at 1015 (explaining that, since the Commission is free
to determine the extent to which substantial assistance by a
defendant should warrant a downward departure and to fashion an
4U.S.S.G. 2L1.2(a) establishes a base offense level of 8
for aliens unlawfully entering the United States. The guideline
provides a four-level increase for aliens previously deported
after conviction for a non-immigration-related, non-aggravated
felony, id. at 2L1.2(b)(1), and a sixteen-level increase if the
previous conviction was for an aggravated felony. See id. at
2L1.2(b)(2). Other aspects of the sentencing scheme, such as how
it treats misdemeanors, see id., comment. (n.1), are not germane
for present purposes and, therefore, need not be discussed.
8
implementing methodology, it is not for the courts to question
the wisdom of rational choices made by the Commission in these
respects).
We hold, therefore, that to the extent the same factor
reflects both the seriousness of an offense and the likelihood of
a particular defendant's recidivism, it may be considered twice
in sentencing for the separate purposes of punishment and
deterrence so long as the Commission, expressly or by fair
implication, so directs. Cf. United States v. Newman, 982 F.2d
665, 672-75 (1st Cir. 1992) (holding double counting to be
permissible in a situation where it was expressly authorized by
the applicable guideline and helped to effectuate the Sentencing
Commission's "carefully calibrated offense level adjustment
scheme"), petition for cert. filed (U.S. Apr. 22, 1993). Because
the ruling below falls squarely within this ambit, we reject
appellant's claim of error.
III
Appellant has another string to his bow. Citing United
States v. Campos-Martinez, 976 F.2d 589 (9th Cir. 1992), he
asseverates that, because his prior felony conviction is an
element of the crime to which he pled guilty, double counting
conflicts with what he terms a "clear policy of the Sentencing
Commission to avoid double counting when the specific behavior is
an element of the crime for which the defendant will be
sentenced." Appellant's Brief at 6. Appellant bases this
argument on the combined force of three items: (1) the language
9
of U.S.S.G. 4A1.2(a)(1) (defining a "prior sentence" for
purposes of computing a defendant's criminal history score as any
sentence "for conduct not part of the instant offense"); (2) an
introductory comment to Chapter 3, Part D, of the sentencing
guidelines (discussing the need for grouping rules "to prevent
multiple punishment for substantially identical offense
conduct"); and (3) a multifaceted analogy to several specific
instances in which the Commission, having employed an element of
the offense in fixing the base offense level, thereafter chose to
eschew any double counting. See, e.g., U.S.S.G. 3A1.1,
comment. (n.2) (discussing vulnerability of victim), 3A1.3,
comment. (n.2) (discussing restraint of victim), 3B1.3
(discussing abuse of special trust), 3C1.1, comment. (n.6)
(discussing obstruction of justice); see also United States v.
Plaza-Garcia, 914 F.2d 345 (1st Cir. 1990) (applying 3A1.1,
comment. (n.2)).
Placing three legs under the asseverational stool does
not render it capable of bearing the load that appellant rests on
it. The first two arguments can be considered in tandem. As the
government points out, both the definition of "prior sentence"
and the caveat to the grouping rules focus on the problem of
punishing a defendant twice for the same conduct. By like token,
the concern expressed by the Sentencing Commission in the
introductory comment to Chapter 3, Part D applies to multiple-
count indictments a situation where, prototypically, a
defendant's guilt on several counts may flow from the same
10
underlying conduct. The case at bar presents a materially
different set of circumstances. Although Zapata's prior drug-
trafficking conviction may well be an element of the offense
stated by 8 U.S.C. 1326(b)(2),5 the conduct which resulted in
that conviction is clearly separate and distinct from the conduct
at issue here. In other words, section 1326(b)(2) does not focus
on appellant's earlier behavior, but on appellant's status as a
previously convicted felon. This distinction completely
undermines appellant's reliance both on U.S.S.G. 4A2.1(a)(1)
and on the introductory comment to the grouping rules. Cf.
United States v. Alessandroni, 982 F.2d 419, 421, 422 (10th Cir.
1992) (upholding, against a similar challenge premised on
4A1.2(a)(1), the district court's consideration of a prior
burglary conviction in calculating both the base offense level
and the CHC applicable to a pending felon-in-possession count).
The third leg of the stool is no more sturdy. The
instances appellant cites as examples of the Sentencing
Commission's policy against double counting simply do not support
the suggested analogy. Those instances, like our decision in
Plaza-Garcia, 914 F.2d at 347, do no more than illustrate that a
given factor is not to be considered twice in calculating a
defendant's offense level. See, e.g., Jones, F.2d at
5At least one district court has concluded that 8 U.S.C.
1326(a) and (b)(2) describe separate and distinct offenses so
that the government "must allege, as an element of a violation of
1326(b)(2), the existence of a defendant's prior aggravated
felony conviction." United States v. Vieira-Candelario, 811 F.
Supp. 762, 768 (D.R.I. 1993). We take no view of this issue.
11
[slip op. at 5-6] (distinguishing Plaza-Garcia on this basis).
For purposes of this case, we accept the premise that a single
factor cannot be double counted in setting a defendant's offense
level. But, such instances are not particularly instructive in
examining the different question of whether a single factor
(here, a prior conviction) may be considered in connection with
both the calculation of a defendant's offense level and the
calculation of his CHC. As we previously indicated, see supra
Part II, we believe that where the guidelines so provide, either
expressly or by fair implication, a single factor may serve
double duty in that fashion. See Newman, 982 F.2d at 673
(holding that the Commission's express prohibition of double
counting in certain instances indicates its intent to permit
double counting in other instances); United States v. Blakney,
941 F.2d 114, 117 (2d Cir. 1991) (allowing consideration of
defendant's prior conviction in connection with both offense
level and CHC calculations where the guidelines did not provide
to the contrary and the general purposes underlying each usage
differed).
IV
We need go no further. We conclude, without serious
question, that double counting of the type employed here using
a single factor to influence both the defendant's offense level
and CHC is permissible. The double counting done in this case
is, moreover, faithful to the tenor and purport of the
guidelines. It follows that the lower court sentenced appellant
12
in a lawful manner. The judgment below is, therefore, summarily
affirmed. See 1st Cir. Loc. R. 27.1.
Affirmed.
13