United States Court of Appeals
For the First Circuit
No. 95-1730
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL ANTONIO CUEVAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Rosenn, Senior Circuit Judge,*
and Lynch, Circuit Judge.
Louis B. Abilheira for appellant.
Margaret E. Curran, Assistant United States Attorney, with
whom Sheldon Whitehouse, United States Attorney, and Edwin J.
Gale, Assistant United States Attorney, were on brief, for the
United States.
February 2, 1996
*Of the Third Circuit, sitting by designation.
LYNCH, Circuit Judge. Before he was convicted for being
illegally present in the United States in violation of 8
U.S.C. 1326, Rafael Antonio Cuevas, a citizen of the
Dominican Republic, had three separate encounters with the
Rhode Island criminal justice system. The primary question
in this sentencing appeal is whether the disposition of at
least one of Cuevas' state offenses was a "conviction" for an
"aggravated felony" under the prior offense enhancement of
U.S.S.G. 2L1.2(b)(2) (Nov. 1994). Cuevas says that the
enhancement does not apply to him, arguing that one of the
offenses was not a "conviction" under state law, and that the
others were not "aggravated felonies." We hold otherwise, on
the grounds that the definition of "conviction" is a matter
of federal, not state, law and that Cuevas' reading of the
term "aggravated felony" is foreclosed by a recent decision
of this court. Cuevas falls within the group as to whom
Congress and the Sentencing Commission intended longer prison
terms illegal aliens previously deported after aggravated
felony convictions and so we affirm his sentence.
Facts
Each of the three times that Cuevas faced charges under
the criminal law in Rhode Island, he submitted a plea of nolo
contendere, his plea was accepted, he was judged guilty of
the crime charged, and he was sentenced. In 1983 he received
three years probation for breaking and entering into a
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building in the nighttime with intent to commit larceny; in
1984 he was sentenced to a year in prison plus probation for
possession of cocaine; and in 1986 he was sentenced to two
years probation for possession of cocaine.
Cuevas was deported in 1989. He returned illegally in
1990, then was arrested again in 1994 on another Rhode Island
charge of cocaine possession. Once again, he pleaded nolo
and was sentenced to probation. While serving that term of
probation, he was found in the United States by federal
authorities. He was subsequently indicted in federal court
on a charge of having been found in the United States without
obtaining the consent of the Attorney General, in violation
of 8 U.S.C. 1326. He pleaded guilty and was sentenced to
fifty-seven months in prison under U.S.S.G. 2L1.2. His
appeal raises two challenges to his sentence.
The "Aggravated Felony" Enhancement
As in many sentencing appeals, the consequences of this
appeal to the defendant are not negligible. The district
court imposed a sentence of fifty-seven months.1 Cuevas
1. Section 2L1.2 of the Guidelines, which governs
defendant's offense of conviction, sets a base offense level
of 8. The district court then added sixteen levels under
subsection (b)(2) and subtracted three levels for acceptance
of responsibility under 3E1.1, producing a total offense
level of 21. Charted against a criminal history category of
IV, that offense level yielded a sentencing range of 57-71
months; the district court imposed sentence at the bottom of
the range.
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says that he should serve no more than twenty-one months.2
He argues that the 16-level enhancement he received under
2L1.2(b)(2) of the Guidelines3 for having previously been
"deported after a conviction for an aggravated felony" cannot
stand, because neither of the two cocaine possession offenses
he committed prior to his deportation was a "conviction for
an aggravated felony."4 He contends that his first
2. While Cuevas asserts that 2L1.2(b)(2) does not apply to
him, he concedes that his BOL of 8 was subject at least to a
4-level increase under 2L1.2(b)(1). Subtracting two levels
for acceptance of responsibility under 3E1.1(a), he would
calculate his total offense level to be 10, corresponding to
a sentencing range of 15-21 months, given a criminal history
category of IV.
3. Under that guideline, defendants convicted under 8 U.S.C.
1326 who previously have been "deported after a conviction
for an aggravated felony" are subject to a substantial
increase in their sentences:
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). Application note 7 to
2L1.2 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).
4. Defendant also asserts that his 1983 offense of breaking
and entering cannot be characterized as an "aggravated
felony." As the government does not contest this point, we
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violation was not itself an "aggravated felony," and that the
disposition of his second drug offense, to which he pleaded
nolo and for which he received a sentence of probation, was
not a "conviction" under Rhode Island law. We reject both
prongs of Cuevas' challenge.
A. Whether the 1986 Disposition Was a "Conviction"
Cuevas assumes that whether the disposition in 1986 of
his second cocaine possession offense is to be considered a
"conviction" for purposes of the Guidelines is a matter of
Rhode Island law. He posits that he was not "convicted" of
that offense under Rhode Island law and so it cannot be a
conviction for purposes of Guidelines 2L1.2.5 This
assumption is unfounded. In this Circuit and others, courts
have consistently held that whether a particular disposition
treat it as conceded.
5. He relies on R.I. Gen. Laws 12-18-3(a) (1994), which
provides:
Whenever any person shall be arraigned before the
district court or superior court, and shall plead
nolo contendere, and the court places the person on
probation . . ., then upon the completion of the
probationary period, and absent a violation of the
terms of the probation, the plea and probation shall
not constitute a conviction for any purpose.
Evidence of a plea of nolo contendere followed by a
period of probation, completed without violation of
the terms of said probation, may not be introduced
in any court proceeding, except that records may be
furnished to a sentencing court following the
conviction of an individual for a crime committed
subsequent to the successful completion of probation
on the prior offense.
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counts as a "conviction" in the context of a federal statute
is a matter of federal determination.6 Under applicable
federal standards, Cuevas was clearly "convicted" with
respect to his 1986 cocaine possession offense. As that
offense was an "aggravated felony," his 1989 deportation was
"after a conviction" for at least one aggravated felony, and
the enhancement of 2L1.2(b)(2) was properly applied.
In Molina v. INS, 981 F.2d 14 (1st Cir. 1992), this
court addressed the meaning of a statute limiting the
availability of amnesty from deportation to illegal aliens
who have "not been convicted of any felony" while in the
United States. 8 U.S.C. 1255a(a)(4)(B). The petitioner in
that case, an illegal alien, admitted that he had twice
pleaded nolo contendere and been sentenced to probation on
felony drug charges under Rhode Island law. Citing the same
provision of Rhode Island law upon which Cuevas relies here,
see R.I. Gen. Laws 12-18-3, the petitioner argued that a
nolo plea to a drug charge followed by a sentence of straight
probation was not treated as a "conviction" under state law
and, therefore, should not be considered so for purposes of
6. The particular guideline at issue here, 2L1.2,
implements a statutory penalty enhancement found within the
immigration laws. See 8 U.S.C. 1326(b); United States v.
Restrepo-Aguilar, F.3d , , No. 95-1660, slip op. at
3 n.2 (1st Cir. Jan. 30, 1996). Thus, our understanding of
the term "conviction" is informed both by the law governing
immigration offenses as well as the law under the Guidelines
governing the federal sentencing of those offenses.
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federal law. Molina, 981 F.2d at 19. For the court, Judge
(now Justice) Breyer rejected this argument. The court
specifically held that the term "conviction" is a matter of
federal, not state, definition. Molina, 981 F.2d at 19-20;
see also White v. INS, 17 F.3d 475, 479 (1st Cir. 1994) ("As
we have held before, federal law defines the term
'conviction' as it is used in the immigration context."
(citing Molina, 981 F.2d at 19)). The court noted that this
Circuit, forty years earlier, had held that "the meaning of
the word 'convicted' in the federal immigration law is a
federal question." Id. at 19-20 (quoting Pino v. Nicolls,
215 F.2d 237, 243 (1st Cir. 1954) (Magruder, J.) (internal
quotation marks omitted), rev'd on other grounds, 349 U.S.
901 (1955) (per curiam)).7
We follow Molina and Pino and hold that the meaning of
the word "conviction" in 2L1.2(b)(2) of the Sentencing
Guidelines, which implements 8 U.S.C. 1326(b), a provision
found within the immigration laws, is to be determined in
accordance with federal law. See also White, 17 F.3d at 479;
Chong v. INS, 890 F.2d 284 (11th Cir. 1989) (per curiam);
accord Wilson v. INS, 43 F.3d 211, 215 (5th Cir.) (per
7. The Supreme Court in its Pino decision expressed no
disagreement with Judge Magruder's statement that the meaning
of "conviction" is a federal question, but found that the
conviction at issue had not attained "finality." See Pino,
349 U.S. at 901; Wilson v. INS, 43 F.3d 211, 215 (5th Cir.)
(per curiam), cert. denied, 116 S. Ct. 59 (1995); Molina, 981
F.2d at 20.
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curiam), cert. denied, 116 S. Ct. 59 (1995); Ruis-Rubio v.
INS, 380 F.2d 29 (9th Cir.) (per curiam), cert. denied, 389
U.S. 944 (1967).
Support for this conclusion comes from outside the
context of immigration statutes as well. For example, the
Seventh Circuit has recently held, in applying the penalty
enhancement provisions of the Controlled Substances Act, 21
U.S.C. 841(b)(1)(B), that a plea of guilty to a state
felony offense followed by a sentence of probation8
constitutes a "prior conviction," even though that
disposition would not be so deemed under the law of the
convicting state. See United States v. McAllister, 29 F.3d
1180, 1184 (7th Cir. 1994).9 Similarly, in 1983 this court
held that a defendant who had entered a nolo contendere plea
and was sentenced to probation under Rhode Island law had
been "convicted" of a crime for purposes of the federal
8. For purposes of determining whether a state disposition
is a "conviction" as a matter of federal law, there is no
meaningful distinction between a plea of guilty followed by
probation and a plea of nolo contendere followed by
probation. United States v. Bustamante, 706 F.2d 13, 15 (1st
Cir.), cert. denied, 464 U.S. 856 (1983); cf. Sokoloff v.
Saxbe, 501 F.2d 571, 574-75 (2d Cir. 1974) (stating principle
in context of 21 U.S.C. 824(a)(2) license revocation case).
9. Other Circuits are in agreement with McAllister that
federal law governs the meaning of "conviction" in the
federal drug laws. See United States v. Mejias, 47 F.3d 401,
403-04 (11th Cir. 1995) (plea of nolo in state court, even
with adjudication withheld, is conviction for federal
purposes); United States v. Meraz, 998 F.2d 182, 183 (3d Cir.
1993); United States v. Campbell, 980 F.2d 245, 250 n.6 (4th
Cir. 1992), cert. denied, 113 S. Ct. 2446 (1993).
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felon-in-possession-of-a-firearm statute, 18 U.S.C.
922(h)(1), even though the event did not amount to a
"conviction" under state law. United States v. Bustamante,
706 F.2d 13, 14-15 (1st Cir.) (Breyer, J.), cert. denied, 464
U.S. 856 (1983).
The decisions in Bustamante and, to a lesser degree, in
McAllister both were based in part on the Supreme Court's
decision in Dickerson v. New Banner Institute, Inc., 460 U.S.
103 (1983). In Dickerson, a defendant who had pleaded guilty
to a state offense, served a term of probation, and received
an expungement of his record argued that he had not been
"convicted" of that offense. The Court did not agree.
Observing that a defendant "cannot be placed on probation if
the court does not deem him to be guilty of a crime," id. at
113-14, the Court held that the meaning of "conviction" for
purposes of the federal gun control statutes is a federal
matter:
Whether one has been "convicted within the language
of [a federal] statute[] is necessarily . . . a
question of federal, not state, law, despite the
fact that the predicate offense and its punishment
are defined by the law of the State.
Id. at 111-12.
It is true, of course, that the particular outcome
reached in Dickerson under the federal gun control laws was
effectively abrogated by Congress in May 1986, when it
amended 18 U.S.C. 921(a)(20) to read as it currently does.
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That congressional action, however, reflects not a
disagreement with the Court's reasoning, but merely that
Congress determined that its legislative objectives would be
better served by defining "conviction" by reference to state
law. See McAllister, 29 F.3d at 1184-85 ("[W]hile
interpreting federal statutes is a question of federal law,
Congress can make the meaning of a statute dependent on state
law."). The decisions in Dickerson and Bustamante still
stand for the proposition that, absent legislative indication
to the contrary, the meaning of "conviction" for purposes of
a federal statutory scheme is to be determined under
prevailing federal law. See Yanez-Popp v. INS, 998 F.2d
231, 236 (4th Cir. 1993) ("[Dickerson] still stands for the
general proposition that federal law governs the application
of Congressional statutes in the absence of a plain language
to the contrary."); cf. McAllister, 29 F.3d at 1185 (treating
Dickerson as still authoritative, outside context of gun
laws, for principle that guilty plea plus probation equals
conviction under federal law). Congress' decision to
overrule the particular result reached in Dickerson simply
reflects a deliberate choice to define "conviction" as used
in a federal gun statute by reference to state law.
Congress has not made the same choice with respect to
the immigration laws. See Wilson, 43 F.3d at 215; Yanez-
Popp, 998 F.2d at 235; see also Molina, 981 F.2d at 22 ("Of
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course, federal gun control law is not federal immigration
law."). Since the May 1986 enactment of the statutory
amendment to the gun control laws that effectively abrogated
Dickerson, the courts including this one, see White, 17
F.3d at 479; Molina, 981 F.2d at 19 have continued to
define "conviction" according to uniform federal standards
for purposes of the laws governing immigration offenses. If
Congress had disapproved of these cases, it surely could have
amended the immigration laws in the same fashion it did the
firearms statute. That Congress has chosen not to do so
reinforces our conclusion that "conviction" in the context of
the laws governing immigration offenses, including federal
sentencing for those offenses, remains a matter of federal
definition.
The disposition of Cuevas' 1986 state cocaine possession
offense clearly falls within the scope of the term
"conviction," federally understood. This is true both as a
matter of Guidelines interpretation and, more broadly, under
the law governing immigration offenses. Although the
particular guideline at issue here ( 2L1.2) does not define
"conviction," the guideline that contains the general
instructions for assessing a defendant's criminal history
does provide clear guidance. See U.S.S.G. 4A1.2. That
guideline specifically provides that the phrase "'[c]onvicted
of an offense' . . . means that the guilt of the defendant
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has been established, whether by guilty plea, trial, or plea
of nolo contendere." U.S.S.G. 4A1.2(a)(4) (Nov. 1994).10
Relying in part on 4A1.2, this court held in United
States v. Pierce, 60 F.3d 886 (1st Cir. 1995), petition for
cert. filed (Oct. 19, 1995) (No. 95-6474), that a prior state
"conviction" is established for Guidelines purposes by "a
guilt-establishing event (such as a plea where a defendant
states that he does not wish to contest the charges)." Id.
at 892 (plea of nolo, even if followed by a withheld
adjudication, constitutes a "conviction" for federal
sentencing purposes); see also United States v. Jones, 910
F.2d 760, 761 (11th Cir. 1990) (per curiam) (same). Here,
there is no dispute that whether or not Cuevas' second
cocaine offense could be considered a "conviction" under
Rhode Island law, he was indeed adjudged guilty of that crime
following his nolo plea and was sentenced to probation based
on that plea. Cf. Dickerson, 460 U.S. at 113-14 ("[O]ne
cannot be placed on probation if the court does not deem him
to be guilty of a crime."). It seems clear under the
10. Although the direct applicability of this definition is
limited to the "purposes of [ 4A1.2]" itself, the purposes
underlying the Guidelines' criminal history computation
provisions are the same as the purpose behind the prior
offense enhancement contained in 2L1.2(b)(2) i.e., to
provide increased sentences for defendants who have
demonstrated recidivist tendencies. The guidance given in
4A1.2 is instructive, if not dispositive.
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Guidelines, then, that Cuevas was "convicted" of the 1986
cocaine offense.
Furthermore, even outside the specific context of the
Guidelines, the law is plain that a state's acceptance of a
defendant's plea of nolo contendere on a drug charge followed
by imposition of a probationary sentence counts as a
"conviction" for purposes of the statutes relating to
immigration offenses. White, 17 F.3d at 479;11 Molina, 981
F.2d at 18; Ruis-Rubio, 380 F.2d at 29-30. We conclude that
Cuevas was "convicted" in 1986 of his second cocaine offense,
both within the meaning of the Guidelines and within the
broader context of the laws governing immigration offenses.
11. In White, we said that a disposition meets the federal
definition of "conviction" for purposes of the laws governing
immigration offenses if:
(1) a judge or jury has found the alien guilty or he
[or she] has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to
warrant a finding of guilty;
(2) the judge has ordered some form of punishment,
penalty, or restraint on the person's liberty to be
imposed . . .; and
(3) a judgment of adjudication of guilt may be
entered if the person violates the terms of his [or
her] probation or fails to comply with the
requirements of the court's order, without
availability of further proceedings regarding the
person's guilt or innocence of the original charge.
White, 17 F.3d at 479 (quoting Matter of Ozkok, Interim
Decision 3044, 19 I. & N. Dec. 546, 551-52 (B.I.A. 1988));
see also Wilson, 43 F.3d at 213-14 (adopting Ozkok); Molina,
981 F.2d at 18 (quoting Ozkok). All of these factors are
satisfied by the disposition of Cuevas' 1986 cocaine
possession offense.
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Once the disposition of Cuevas' second cocaine offense
is recognized to be a conviction, it clearly constitutes an
"aggravated felony" under U.S.S.G. 2L1.2(b)(2). An
"aggravated felony" includes any "drug trafficking crime"
within the meaning of 18 U.S.C. 924(c)(2). U.S.S.G.
2L1.2, comment. (n.7). A "drug trafficking crime" in turn
encompasses, inter alia, any offense that is both (1) a
felony and (2) punishable under the Controlled Substances Act
(21 U.S.C. 801 et seq.). See 18 U.S.C. 924(c)(2); United
States v. Restrepo-Aguilar, F.3d , , No. 95-1660,
slip op. at 7 (1st Cir. Jan. 30, 1996); United States v.
Forbes, 16 F.3d 1294, 1301 (1st Cir. 1994). Here, the
defendant's second offense of simple possession of cocaine
undoubtedly qualifies as a felony in the requisite sense.
Forbes, 16 F.3d at 1301 (explaining that a second drug
possession offense is punishable as a felony under federal
law).12 And cocaine possession is, of course, punishable
under the Controlled Substances Act. See 21 U.S.C. 844(a).
Thus, the offense falls within the definition of "drug
12. The possession offense, which was punishable under Rhode
Island law by a maximum of three years imprisonment, see R.I.
Gen. Laws 21-28-4.01(C)(1)(a), is also a felony under state
law, see R.I. Gen. Laws 11-1-2 (defining "felony" as an
offense punishable by a term of imprisonment exceeding one
year). Thus, regardless whether the offense would have been
punishable as a felony under federal law, the offense
qualifies as a felony for purposes of the definition of "drug
trafficking crime." See Restrepo-Aguilar, F.3d at ,
slip op. at 9.
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trafficking crime" under 18 U.S.C. 924(c)(2), and is an
"aggravated felony" within the meaning of U.S.S.G.
2L1.2(b)(2) and application note 7. The district court,
therefore, properly increased the defendant's base offense
level by 16 levels.
B. Whether the 1984 Offense Was a "Felony"
Even were one to assume that the disposition of Cuevas'
1986 cocaine offense was not a "conviction," his challenge to
the application of 2L1.2(b)(2) would fail, because his 1984
conviction for cocaine possession was itself for an
"aggravated felony." As to his 1984 cocaine offense, Cuevas
does not dispute that he was "convicted." Rather, he argues
that, while the offense was a felony under Rhode Island law,
it would have been punishable only as a misdemeanor if
prosecuted under federal law, and therefore could not be a
"felony," nor a "drug trafficking crime," nor an "aggravated
felony" for purposes of 2L1.2(b)(2). We recently rejected
precisely this argument, however, in United States v.
Restrepo-Aguilar, F.3d , No. 95-1660 (1st Cir. Jan. 30,
1996). Thus, even apart from Cuevas' 1986 cocaine possession
offense, the district court properly enhanced defendant's
sentence by 16 levels in view of his 1984 offense, which was
itself an "aggravated felony" under 2L1.2(b)(2).
Criminal History Category Computation
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Cuevas argues that the district court erroneously added
two points to his Guidelines criminal history computation
based on a finding that defendant had committed his federal
offense of conviction while under a sentence of probation
imposed by the Rhode Island state court for a 1994 state drug
offense. See U.S.S.G. 4A1.1(d) (Nov. 1994) ("Add 2 points
if the defendant committed the instant offense while under
any criminal justice sentence, including probation . . . .").
Defendant contends that because he illegally reentered the
United States in 1990, he could not have committed that
offense while under his 1994 state probationary sentence.
This argument has no more than superficial appeal.
The unambiguous terms of the statute under which Cuevas
was convicted establish that a deported alien who illegally
reenters and remains in the United States can violate the
statute at three different points in time: when he "enters,"
"attempts to enter," or when he "is at any time found in"
this country. 8 U.S.C. 1326(a). As was said in United
States v. Rodriguez, 26 F.3d 4 (1st Cir. 1994), "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." Id. at 8.
Cuevas was indicted specifically for the offense of
being "found" in the United States in violation of 1326(a).
That was the charge to which he pleaded guilty. Thus, even
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though defendant illegally reentered the United States in
1990, he committed his 1326(a) offense in 1995, when he was
"found." Rodriguez, 26 F.3d at 8. He was unquestionably
serving a criminal probationary sentence for his 1994 state
drug conviction at that time. There was no error in the
district court's application of U.S.S.G. 4A1.1(d).
Affirmed.
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