USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1371
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
ROBERT FORBES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Torruella, Circuit Judge.
_____________
____________________

C. Sidney Lester with whom Lester, Hubbert & Gill, P.C. was
_________________
_____________________________
brief for appellant.
Edwin O. Vazquez, Assistant United States Attorney, with w

_________________
Guillermo Gil, United States Attorney, and
Jose A. Quiles-Espino
______________
_____________________
Senior Litigation Counsel, were on brief for appellee.
____________________
February 25, 1994
____________________

Coffin, Senior Circuit Judge.

____________________
his

conviction and sentence for illegal

States after deportation, 8 U.S.C.

I.
In August
was

Robert George Forbes appeal

Forbes

attempted

1326.

We affirm.

Factual Background
__________________

1992, Robert George

deported from

reentry into the United

New York
to reenter

Forbes, a

to Jamaica.
the

United

The

Jamaican citizen

following month,

States

with a

passport that had been altered to include his picture.

false

A federal

grand jury in the District of Puerto Rico subsequently returned a

two count indictment against Forbes, charging him with unlawfully

using an altered passport, in violation of 18 U.S.C.

with unlawfully

attempting to

reenter the

having previously been arrested and

U.S.C.

1543, and

United States

after

deported, in violation of

1326.1

____________________

1The indictment reads as follows:

Count One
Count One
On or about September 20, 1992, in the District o
Puerto Rico, and within the jurisdiction of this Court,
Robert George Forbes
Robert George Forbes
also known as
also known as
Julian David Brynteson
Julian David Brynteson
the defendant herein, while applying for admission into th
United
States of
America, willfully,
knowingly, an
unlawfully, did use an altered passport, to wit: Unite
Kingdom passport number 003856139 in the name of JULIA
DAVID BRYNTESON which passport had been altered by removin
the photograph of the owner and replacing it with one o
the defendant. All in violation of Title 18, United State
Code, Section 1543.

COUNT TWO
_________
On or about September 20, 1992, in the district o
Puerto Rico and within the jurisdiction of this Court,
Robert George Forbes
Robert George Forbes
also known as
also known as
Julian David Brynteson
Julian David Brynteson
-2-

On December 16, 1992, Forbes entered into a plea

agreement

in which he pled guilty only to the charge of unlawfully entering

the

United States, in violation of 8 U.S.C.

his plea, Forbes

1326.

waived his right to appeal

imposed by the Court under

As part of

"any legal sentence

the Sentencing Guidelines as a result

of this Plea Agreement."

Forbes' presentence report (PSR)

computed his total offens

level at 21: 8 points were assigned as the base offense level for
convictions under 8 U.S.C.

1326, 16 points were

added for his

previous deportation after a conviction for an aggravated felony,

and 3 points were subtracted for acceptance of responsibility and

timely

notifying authorities of

See U.S.S.G.
___

2L1.2(a), (b)(2);

recommended

criminal

criminal history points.

At
district

sentencing

court adopted

See U.S.S.G.
___
hearing
the

46-57 months.
in

Based on
other

plead guilty.

3E1.1(b)(2).

history category

determined the corresponding

government

his intention to

held

of

The PSR

also

based

on 4

III,

5, Part A.
on

March

recommendations

of

sentencing guidelines

12,

1993,

th

the

PSR,

and

range to

be

evidence of Forbes' cooperation with the

cases, and

his

continued

willingness to

____________________

the defendant herein, being an alien previously arreste

and deported from the United States, that is, on or abou
August 18, 1992, to Jamaica, willfully, knowingly, an
unlawfully did attempt to reenter the United States from
place outside of the United States without having obtained
prior to his reembarkation,
the express consent
an

permission
from the
Attorney General of
the Unite
Stat[e]s. All in violation of Title 8, United States Code
Section 1326.
-3-

cooperate in the

future, the sentencing judge

departed downward

from the applicable guideline range, and imposed a sentence of 36

months

plus

three years

of

supervised release.

This appeal

followed.
Forbes argues

that the

ineffective, because it

waiver of

his right

was not knowingly and

to appeal

voluntarily made;

and that, even were the waiver effective, he still has a right to
appeal

his sentence,

because the

Sentencing Guidelines to
that the

court erred

compute his sentence.

government's failure

to allege

in his

in applying
He also

the

claims

indictment the

aggravated felony used

to enhance his sentence under

8 U.S.C.

1326(b)(2) renders the

indictment sufficient only to

charge him

with a

violation of 8 U.S.C.

1326(a).

Forbes' final claim is

that the use of a prior felony conviction to enhance his sentence

under

1326

violates

the

ex
__

post
____

facto
_____

Constitution.
II.

The Waiver Provision

clause

of

the

____________________
By

its

terms,

the

waiver

agreement is narrow, covering only

sentence imposed
reach

the

voluntary,

question

of

whether

nor whether Forbes'

Because

in

Forbes'

ple

the right to appeal any legal

_____

under the Sentencing

this waiver, because his

defect.

provision

his

Guidelines.

We

waiver

knowing

claims lie

was

beyond the

appeal suffers from a more

he failed to raise any of

need not

and

scope of

fundamental

these claimed errors

before the district court, with the exception of his challenge to

the sufficiency of

the indictment, see infra at

___ _____

5-14, we cannot

-4-

correct them

absent a showing

Carozza, 4 F.3d
_______

of plain error, United States v.

______________

70, 86-87 (1st Cir. 1993).

As we discuss below,

Forbes has failed to make such a showing here.

III.
Forbes

pled

Forbes' Section 1326 Claim

__________________________

guilty

to

one

following deportation, in violation of

text

of which is

set forth in

count

of

8 U.S.C.

the margin.2

unlawful

reentr

1326, the full

Subsection (b) of

this provision

part of

the Anti-Drug

Abuse Act of 1988, see Pub. L. 100-690, Title VII,

___

7345(a), 102

Stat. 4471
Forbes'

was added

by Congress as

(codified as amended

indictment

alleged

only

at 8 U.S.C.
unlawful

1326(b) (1988)).
reentry

following

____________________
2This statute provides:

(a) Subject to subsection (b) of this section, any alie

who-(1) has been arrested and deported or excluded an
deported, and thereafter
(2) enters, attempts to enter, or is at any time foun
in,
the United
States,
unless
(A)
prior to
hi
reembarkation at a place outside the United States or hi
application
for
admission
from
foreign
contiguou
territory, the Attorney General has expressly consented t
such alien's reapplying for admission; or (B) with respec
to an alien previously excluded and deported, unless suc
alien shall establish that he was not required to obtai
such advance consent under this chapter or any prior Act,
shall be fined under
2 years, or both.

Title 18, or imprisoned not more

tha

(b) Notwithstanding subsection (a) of this section, in th

case of any alien described in such subsection-(1) whose deportation was subsequent to a convictio
for commission of a felony (other than an aggravate
felony), such alien shall be
fined under Title
18
imprisoned not more than 5 years, or both; or
(2) whose deportation was subsequent to a convictio
for commission of an aggravated felony, such alien shall b
fined under such Title, imprisoned not more than 15 years
or both.
-5-

deportation,

and did

aggravated

felony

not

conviction.

government's failure to
permitted it
subsection

include any

renders

charge a violation
be contained

of

within

subsection.

Forbes

to his

claims

indictment

forth under

sufficient only

1326(a), and requires

the statutory

the

felony that

within the limits set

the

prior

that

allege the prior aggravated

to sentence him
(b)(2)

reference

maximum

to

that his sentence

set forth

by

that

If, as Forbes contends,

1326(a) and

1326(b) describe separate and distinct

his sentence

cannot stand,

because he

cannot be

offenses,

sentenced and

convicted under a statutory provision under which he has not been

indicted.

Hamling v.
_______

United States
_____________

v.

1992).

United States, 418

_____________

McDonough, 959
_________

The government

U.S. 87,

F.2d 1137,

replies

that

117 (1974);

1140-41 (1st

Cir.

Forbes' failure

present this issue before the district court bars this court from
considering

it on

describes only

appeal.

a single

sentence

enhancement

increase

the

It claims,

further,

offense, and that

provision,

penalties

for

which

1326

subsection (b)

permits

violation

that

the

is a

court

to

on

the

depending

defendant's criminal record.

Forbes'

failure

indictment does not

on appeal.

to

point

out

preclude our consideration of

defects

in th

this argument

Under Federal Rule of Criminal Procedure 12(b)(2), an

objection that an indictment fails to

of an

perceived

offense "shall be noticed by the

state an essential element

court at any time during

the pendency of

the proceedings."

This objection

may be raised

-6-

by

a defendant

for the first

Seuss, 474 F.2d

_____

time on appeal,

385, 387 n.2 (1st

United States v.
_____________

Cir. 1973), or by

an appeals

court sua sponte, see United States v. Saade, 652 F.2d 1126, 1133
___ ______ ___ _____________
_____
(1st Cir. 1981)
for

the

(citing cases).

first

time

on

indictments be construed

When such an objection is urged

appeal,

courts

have

required

liberally, finding an indictment

that

to be

sufficient unless there is no reasonable construction by which it

could charge
See, e.g.,
___ ____

an offense for
United States v.
_____________

Cir. 1989).
substitute

While

for setting

was convicted.

Wilson, 884 F.2d 174,

______

statutory citation,
forth the

reinforce other references

valid.

which the defendant

179-181 (5th

standing alone,

elements of

a crime,

in the indictment so as

cannot

it may

to render it

United States v. McLennan, 672 F.2d 239, 243-44 (1st Cir.

_____________
________

1982).
Forbes'

indictment

follows

the

language

of

U.S.C.

1326(a).

It makes

deported subsequent
If, as Forbes

to a

to the

conviction for

maintains, an aggravated

element of a
because

no reference

1326(b) offense, his

it fails to set

fact that

Forbes was

an aggravated

felony.

felony conviction is

an

indictment is insufficient,

out an essential

element of an offense

under that section.

Whether

1326(a) and

offenses, with
single

different elements

offense,

defendant's

1326(b) describe separate

allowing

and maximum

sentence

crimina

penalties, or

enhancement

based

on

criminal history, is an issue of first impression in

-7-

this

court.3

The

District

Island, the only court within

recently held that

Court for

the

District of

Rhode

our circuit to address this issue,

1326(a) and

1326(b) set forth separate and

distinct offenses, with different elements and maximum penalties.

United States v. Vieira-Candelario, 811 F. Supp. 762, 768 (D.R.I.

_____________
_________________
1993).

The Fifth

tackled

this issue in the past two

conclusions.

and the Ninth

See United States

Circuits, both

of which

have

years, have come to opposite

v. Campos-Martinez, 976 F.2d 589

___ _____________

_______________

(9th Cir. 1992) (sections 1326(a) and (b) state separate crimes);
United States
_____________

v. Gonzalez-Medina, 976
_______________

F.2d 570 (9th

Cir. 1992)

(same)4; United States v. Vasquez-Olvera, 999 F.2d 943

_____________
______________
1993) (section
see also
___ ____

1326(b)

is a

sentence enhancement

United States v. Crawford,

_____________
________

(5th Cir.

provision)5;

815 F. Supp. 920

(E.D. Va.

is a sentence

enhancemen

1993) (same).
In determining whether a statute
provision

or

separate

criminal

offense,

language,

structure, and legislative history.

we

look

at

its

See, e.g., United

___ ____ ______

____________________
3We have,

however, noted the

issue.

See United States v.

___ ______________
Zapata, 1 F.3d 46, 50 n.5 (1st Cir. 1993) (citing United States
______
______ _____________
v. Vieira-Candelario, 811 F. Supp. 762, 768 (D.R.I. 1993)).
_________________

4The Ninth Circuit decisions gave no rationale for their

conclusion that these provisions described separate offenses,
with different elements and maximum sentences, other than to say
that this statute was similar to 8 U.S.C.
1325, which counted a
prior conviction for illegal entry as an element of the felony
offense under that section.
See Campos-Martinez, 976 F.2d at
___ _______________
591-92; Gonzalez-Medina, 976 F.2d at 572-73.
_______________

5Judge King wrote a dissenting opinion in which she adopted

Ninth Circuit's analysis in Campos-Martinez and the District
_______________
of Rhode Island's analysis in Vieira-Candelario.
999 F.2d at
_________________
947-950.
the

-8-

States v. Rumney, 867 F.2d 714, 717-18 (1st Cir. 1989) (examining
______
______
these

factors in

holding

that provision

of

the Armed

Criminal Act of 1984 was a sentence enhancer, and not

offense).

We have

such as a

noted that

penalty that is a

underlying

crime,

or

a separate

particular structural

features,

multiplier of the sentence

title

denoting

it

Career

as

for the

sentence

enhancement provision, may indicate that a statutory provision is

a sentence

enhancer, but we

conclusive.

See id. at
___ ___

have not treated these

718-19.

Our

features as

analysis begins with

the

statute's language and structure.

In

our view,

because the
The first
its

and

language

provisions are
was adopted by the

conclusion that

provision.
that,

the

introductory

structure are

unhelpful

subject to

two plausible

readings.

Fifth Circuit and used

subsection (b)

is

Vasquez-Olvera, 999 F.2d

______________

in drafting the
(b),

and

Congress

a sentence

at 946.

That

introductory language of
intertwined

language

of

the

subsection

two
(a)

to support

enhancement

court noted

subsections (a)
provisions:

states

"subject

the

to

subsection (b) of this section," and the introductory language of

subsection

(b)

states,

"subject

to

subsection

(a)

of

this

section."

The

Fifth Circuit

found

unlikely that Congress would structure

that subsection (b) is
if

it intended

offense."

that it

would be

"highly

the statute in such a way

dependent on elements of subsection

for subsection

(b)

to be

a separate

(a),

criminal

Id.; accord Crawford, 815 F. Supp. at 923.

___ ______ ________

-9-

We believe it
incorporates
adds the
felony

just as likely, however, that subsection

the offense described in subsection (a), and simply

additional element

regarding a

or aggravated felony.

(King, J. dissenting);
at 767 (finding

logical way

the statute's

of

prior conviction of

Vasquez-Olvera,
______________

999 F.2d

see also Vieira-Candelario, 811

___ ____ _________________

fact that each subsection makes

the

(b

indicating

plain language

at 948

F. Supp.

ambiguous).

The

reference to the other is simply

the

relationship

between

the

arguably two separate crimes.

Nor does the title of the statute offer sufficient

guidanc

about whether subsection (b) is a sentence enhancer or a separate

element

of the

crime.

Before 1988,

"Reentry of deported alien."

add

subsection (b),

deported

alien;

create

One

change the
penalties

amending

enhanced penalties for

of

following deportation.
United States
_____________

title

for

to "Reentry

reentry

of

court has argued that this change

that in

underlying offense

was entitled

In 1988, the statute was amended to

to

criminal

deported aliens."
title indicates

and

the statute

1326, Congress

certain aliens who

_______

unlawfully reentering

v. Vasquez-Olvera,
______________

999 F.2d at

certain

in the

intended to

committed the

the United

Crawford, 815 F. Supp. at

________

of

States

924; see also

___ ____

945.

While this

argument has some force, we think that a competing interpretation

is equally permissible.

The bifurcated structure of

1326 and

the apparent incorporation of the elements of subsection (a) into

subsection

(b) might

also suggest

that

Congress intended

the

broad title of the offense ("reentry of deported alien") to apply

-10-

to both separate offenses in the different subsections.

Olvera, 999 F.2d at 949 (King, J., dissenting).
______

Vasquez________

Finally, we have

not

found any

legislative

aspect of 8 U.S.C.

history

1326(b)(2).

language, structure and

take a broader look

In

at the factors

so doing,

decision of

Lacking

we

this court

particular

insight

from

legislative history we are

classify a provision either as

crime.

discussing this

the

compelled to

implicated by a decision

to

a sentence enhancer or a separate

have

found guidance

addressing a similar

in

previous

issue.

In United
______

States v. Rumney, 867 F.2d 714 (1st Cir. 1989), we were

______
______

asked to

determine

U.S.C.

whether the

1202(a) (Supp.

1984)

separate substantive
possession, or

transports in

maximum,

was a

Section

transportation of

penalty for
commerce

arguing that the

prior convictions

firearms by

in

the

those with

this statute to

18 U.S.C.

and

resolved

the

who has

under the

government's failure to
rendered

insufficient to charge a violation of the ACCA.

We

question

in

prior

increase

1202(a) (Supp.

his sentence

indictment

or

"receives, possesses,

any firearm

Forbes, challenged

enhancer

1202(a) penalized receipt,

a person who
. .

Act, 18

sentence

The ACCA amended

previous felony convictions."

Rumney, like

Career Criminal

(ACCA)6,
crime.

felony convictions.
the minimum

Armed

Rumney
______

the

or

three

1984).

higher

allege three

indictment

867 F.2d at 717.

primarily

based o

6The statute has since been recodified into two

provisions.
The first sentence of the former
describing the unlawful conduct, now appears at 18
922(g), while the ACCA provision has been incorporated
other penalty provisions of 18 U.S.C.
924(e).

separate
1202(a),
U.S.C.
into the

____________________

-11-

legislative history, which demonstrated Congress' intent that the

ACCA

be

element.
the

sentence

We

enhancer,

and

not

a separate

also observed, however, that the

disputed

prior

classification
718-19; see
___

as a

crimes

provision

sentence enhancer.

special nature of

further

supported

Rumney, 867
______

also United States v. Jackson,

____ ______________
_______

statutory

824 F.2d

its

F.2d 714,

21, 25-26

(D.C. Cir. 1987).

We felt it
deemed a separate

significant that if the disputed provision

element, the government

wer

would be required

to

place evidence of the defendant's prior felony convictions before

the jury.

The introduction

prejudicial, and
F.2d at

719; see
___

should not

strong

824 F.2d

of avoiding

prejudicial

lightly, Rumney,
______
at 25

in criminal

867

(noting strong

introduction of

evidence

is highly

this type

trials).

of

Thus,

policy reasons for keeping information about prior crimes

from the jury

ACCA

be permitted

also Jackson,
____ _______

Congressional policy
potentially

of prior crimes evidence

was a

counselled in favor of our

sentence enhancer,

an issue

determination that the

to be

decided

by the

judge.
In addition, under
of

traditional sentencing procedures, proo

a defendant's prior felony

convictions typically is the type

of individual background information considered by the judge, and

not the jury, see Gov't of Virgin Islands v. Castillo,
___ ________________________
________
850, 853 n.5

(3rd Cir. 1977); see

___

also id. at 854

____ ___

550 F.2d

(noting that

additional language in statutory provision that increased penalty

for

conduct which

was already a

crime was

in the nature

of a

-12-

sentencing statute

rather than

Compare United States v.

_______ ______________
1993)

(concluding

that

a substantive offense

Michael, 10 F.3d
_______
statutory

possession of cocaine base for

838, 842

amendment

statute).

(D.C. Cir.

singling

out

especially harsh penalties was

separate element, and not a sentence enhancer, based, in part, on

observation
admission

that unlike
before

the

consideration
jury

determination of the character of

events associated with

was

of prior
highly

crimes,

prejudicial,

the drug was an aspect of

the crime itself, and a

whose

the

the

fact that juries

typically resolve).
rationale

And,

the instant case.

matters

in Rumney,
______

for requiring sentencing factors to

jury -- the necessity for

in

as we noted

of record

Prior

convictions are
not be

had received

protections

due

in

the

factfinding

is necessary."

be submitted to a

accurate factfinding -- does not apply

which need

Because defendants

"the primary

highly verifiable

subject to

the totality of

prior

proceedings,

867 F.2d

at

jury inquiry.

constitutional
no

additional

719 (quoting

United
______

States v. Brewer, 853 F.2d 1319, 1326 (6th Cir. 1988)).7

______
______
This reasoning
1326(b)

is

similarly applies here.

separate

element,

If we find that

defendant's

past

felony

____________________

7As the Fifth Circuit has explained in the context of a

similar recidivist statute, prior convictions "have no relation
to the circumstances of the wrongdoing constituting the most
recent offense, but rather to something which is wholly unrelated
thereto.
Further, they do not relate to determining what the
accused has done but rather what the state has previously
__________
determined that he has done.
And that previous determination
must have been a formal, judicial determination of guilt; and
________
_____
hence one as to which the full measure of constitutional
protections was available." Buckley v. Butler, 825 F.2d 895, 903
_______
______
(5th Cir. 1987).
-13-

conviction

would

information

is

have

to

especially

underlying crime (unlawful

not

be viewed

absence

by the

be

revealed to

prejudicial

jury as

on defendants.

posture

of

this

indictment is an
the prejudice

case

have

than

lose

makes

might

In the

to impose

defendant here

that

position

the government, while

introduction of prior

In the

the

omission of an element from an

error easily remedied by

from the

here,

1326(b) is a separate element.

But the

easily neutralized.
more to

we are reluctant

We realize that the

particular

strategically desirable.

as

This

particularly egregious.

argues for a determination that

The

where,

jury.8

reentry following deportation)

of Congressional direction,

that burden

the

crimes is

not so

long run, we believe that defendants

gain from

the

interpretation of

the

provision urged by Forbes on this appeal.

Thus,
policy and
construed

while we
precedent

have no direction from

persuade

as a sentence

therefore need not

us

that

have alleged Forbes' prior

IV.

should

be

The indictment

aggravated felony

1326(b).

Sentencing Guidelines Claims

____________________________

Forbes raises three additional claims

calculation of his

sentencing court

1326(b)

enhancement provision.

conviction to permit his sentencing under

to the

the statute itself

sentence.

erred in increasing

of error with

First, he

regar

argues that the

his base offense

level by

____________________
8In some cases,

this may include evidence of

more than one

conviction. For example, an aggravated felony within the meaning

of 8 U.S.C.
1326(b)(2) might be made up of more than one
criminal act. See infra at 15-17.
___ _____
-14-

sixteen points

under guideline

provision 2L1.2(b)(2), based

on

the finding that Forbes previously was deported after having been
convicted
offense
point

for

an aggravated

on which the
penalty

felony.
aggravated

he

does not

contends

that

claims

to support

qualify
the

as

that the

the sixteen

an aggravated

application

of

the

felony enhancement to this conviction violates the ex

__

post facto clause of the Constitution.

____ _____
1986

Forbes

government relied

enhancement

Second,

felony.

violation for

which he

sentence should not have been

received

Finally, he argues that a

a conditional

discharge

included in the calculation of his

criminal history category.

As

noted

above,

challenges before the

Forbes

did

not

raise

district court, and they

subject to only plain error review.

any

of

thes

consequently are

See p. 4 supra.
___
_____

-15-

A.
The
U.S.C.

Sentencing

Guidelines relating

1326 are set forth at

sets the
States

Aggravated felony determination

_______________________________

base offense level

at

8, with

an

previously was deported

the defendant
aggravated

offenses

2L1.2.

4 levels

if

Forbes argues

that

the United

the defendant

after conviction for a felony,

deported after

under

This provision

for unlawful entry into

increase of

previously was

felony.9

U.S.S.G.

to

or 16 if

conviction for
his

an

1988 conviction

under N.Y. Penal Law

an aggravated

felony.

him 16 points for this

220.09 (McKinney 1989) does not qualify as

He

claims, therefore, that

by assigning

conviction, the court overstated his base

offense level.
____________________

9The offense of conviction, 8 U.S.C.

1326, and the
applicable guidelines, U.S.S.G.
2L1.2, share a
similar
structure, but serve different functions.
Section 1326 sets
forth the elements of the offense and the maximum penalties for
convictions under this section.
Once a defendant has been
convicted, the guidelines operate to determine the appropriate
penalty within this range. In this case, the guidelines direct
the court to consider specific offense characteristics under
2L1.2, which include previous deportation following an aggravated
felony conviction, in order to determine the applicable guideline
sentencing range, see U.S.S.G.
1B1.2(b) & application n.2;
___
2L1.2(b)(2).
Under the guidelines, courts may consider such
information for sentencing purposes even where this conduct was
not an element of the offense of conviction. For example, if we
were to hold that
1326(a) and (b) were two separate offenses,
and that Forbes could be convicted and sentenced only under
1326(a), we still could consider his prior aggravated felony
conviction in calculating his sentence under 2L1.2. The sentence
we could impose however, would have to be within the two year
range set forth in
1326(a).
See United States v. Arias, 941
___ _____________
_____
F.2d 996 (9th Cir. 1991) (holding that defendants' prior felony
convictions, though not encompassed within a conviction under
1326(a), could still be considered in computing defendants'
sentence under U.S.S.G.
2L1.2, provided that the sentence
imposed did not exceed the two-year statutory maximum under
1326(a)).
-16-

"Aggravated

felony"

Application Notes to
in any

controlled

is

defined

in

paragraph

2L1.2 to include "any

substance

(as defined

including any drug trafficking crime

of

th

illicit trafficking
in

21

U.S.C.

802),

as defined in 18 U.S.C. 924

(c)(2) . . . " and applies to offenses in violation of federal or

state law.
A

"drug

924(c)(2)

trafficking

crime"

is

defined

in

18

U.S.C.

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.

Drug Law Enforcement Act (46 U.S.C.

drug offense to come within

951 et seq.), or

the Maritime

App. 1901 et seq.)."

this statute, and, in turn,

For

to meet

the definition of "aggravated felony," it must meet two criteria:

first, the

offense must be

enumerated statutes; and

punishable under one of

second, the offense

these three

must be a

felony.

Amaral v. I.N.S., 977 F.2d 33, 35 (1st Cir. 1992).

______
______
Forbes
Possession of

argues

that

an

aggravated

misapprehends

New

York

a Controlled Substance in the

not meet either criterion, and

as

the

the

felony.
operation

offense,

Crimina

Fourth Degree, does

therefore should not be construed

His
of

argument
the

fails

applicable

because

it

sentencing

guideline.
Possession of drugs is punishable under
a part of the Controlled

Substances Act.

21 U.S.C.

844(a)

This statute provides,

in relevant part:

It
shall be
unlawful for
any person
knowingly o
intentionally to possess a controlled substance unless suc

-17-

substance was obtained directly, or pursuant to a vali

prescription order, from a practitioner, while acting i
the course of his professional practice, or except a
otherwise authorized by this subchapter or subchapter II o
this chapter. Any person who violates this subsection ma
be sentenced to a term of imprisonment of not more than
year, and shall be fined a minimum of $1,000, or both
except that if he commits such offense after a prio
conviction under this subchapter or subchapter II of thi
chapter, or a prior conviction for any drug or narcoti
offense chargeable under the law of any State has becom
final, he shall be sentenced to a term of imprisonment fo
not less than 15 days but not more than 2 years, and shal
be fined a minimum of $2,500 . . . .
A felony

is defined under

the Controlled Substances Act a

"any Federal or State offense classified by applicable Federal or

State Law as a
3559(a), an

felony."

offense is a

for the offense

is "more

authorized under 21 U.S.C.

year.

21 U.S.C.

802(13).

felony if the maximum

than one year."

Under 18 U.S.C.

term authorized

The maximum

penalty

844(a) for simple possession is one

However, one prior conviction turns simple possession into

a felony since
this case,

the maximum penalty increases to over a year.

Forbes' 1987

conviction for

Criminal Possession

In

of

Marijuana in the Fifth Degree, in violation of N.Y. Penal Law

221.10
N.Y.

(McKinney 1989),

Penal

Law

220.09

converts his
into

later conviction

felony.10

Because

under

Forbes'

conviction

is

felony

punishable

by

one

of

the

statutes

____________________

10Moreover, possession is a felony under the applicable

state law.
In New York, the maximum imprisonment for Criminal
Possession of a Controlled Substance in the Fourth Degree is
fifteen years, see N.Y. Penal Law
220.09 (McKinney 1989),
___
70.00 (McKinney 1987), and any criminal offense punishable by
more than one year is a felony, N.Y. Penal Law
10.00 (McKinney
1987).
Thus, under the definition of a felony in 21 U.S.C.
802(13), Forbes' possession conviction, which is a felony under
New York Law, is also a felony under the Controlled Substances
Act.
-18-

enumerated in 18 U.S.C

924(c)(2), it therefore qualifies as an

aggravated felony within the meaning of U.S.S.G.

2L1.2.

-19-

B.
The

ex post
__ ____

Ex post facto determination

___________________________
facto provision
_____

retrospective application

of laws

of the

Constitution bars th

that materially

disadvantage

the defendant.

See
___

U.S. Const., Art. I,

9, cl. 3; Art.

I,

10, cl. 1.

A central concern of the ex post facto prohibition is

__ ____ _____

to

that legislative

assure

effect

and permit

acts

individuals to

explicitly changed."

"give fair
rely

warning

on their

of their

meaning until

Miller v. Florida, 482 U.S. 423, 430 (1987)

______
_______

(quoting Weaver v. Graham, 450 U.S. 24, 28-29 (1981)).

_______ ______
______
Forbes
trigger

the

argues that

the use

aggravated

felony

1326(b)(2) violates the

of

his prior

enhancement

convictions

provision

of

ex post facto provision both because the

__ ____ _____

convictions on which this enhancement was based occurred prior to

the

effective date of

and

because

conviction

he

had

the amendments adding

no

fair warning

effects of the

support of his

the

possible

post-

aggravated felony determination.

claimed lack of "fair warning,"

his comment to the district

he had

of

subsection (b)(2),

In

Forbes points to

judge at his sentencing hearing that

not been told by the immigration

judge that he was being

deported "on an aggravated felony."

In Gryger v. Burke,
______
_____
addressed

Forbes'

first

habitual criminal act.

an ex post
__ ____
enhancing
prior

334 U.S. 728 (1948), the Supreme

argument

In that case, the

facto challenge,
_____
penalties for

in the

a state

crimes on

context

of

criminal convictions, including

a state

Court upheld, against

habitual criminal
the

Cour

basis of

statute

a defendant's

one which occurred before

-20-

the

enactment of

recognized
penalty
obtained

the

the

statute.

legislature's

for future

Id.
___

732.

authority to

conduct preceded

prior to enactment

at

by

Gryger
______

enact

an

a criminal

of the enhanced

thus

enhanced

conviction

penalty provision.

See Covington v. Sullivan, 823 F.2d 37, 39 (2d Cir. 1987).

___ _________
________
Forbes was
which applies to
following

convicted of

By

applies to

its

terms,

any alien who

enter the United States after November

Act's enactment). See Pub. L.
___
Stat. 4471.

Forbes violated

the

States

United

district court

of 8

U.S.C.

aliens who illegally reenter the

deportation.

subsection (b)

a violation

United States

amendment

enters or

adding

attempts to

18, 1988 (the date of the

100-690, Title VII,

7345(b), 102

this statute by attempting to enter

illegally

enhanced

the

1326

his

on September
punishment

20,

based

1992,
on

and the

convictions

entered prior to the effective date of the Act.

Forbes
onerous

the

enactment."

cannot

claim that

punishment
Weaver, 450
______

for

subsection
crimes

U.S. at 36.

(b)(2)

committed

"makes
before

Forbes is being

mor

its

punished

for the

crime of unlawful reentry, in violation

enhancement provision
It does
crimes he

increases the punishment

not affect the

for this
____

committed prior to the effective date

into

enactment of

1326.

punishment that Forbes received

the Gryger Court observed,

______
factored

of

an enhancement

invalidly retroactive.

crime.

for the

of the Act.

the fact that prior convictions

defendant's increased

334

sentence

provision does not

U.S. at 732.

The

As

that

preceded

the

render the

Act

Rather,

an enhanced

-21-

penalty

"is

not

to

additional penalty
penalty

for the

be viewed

for the
latest

as

either

earlier crimes.

crime,

which is

It is

Forbes' claim that he

to be

an

lacked fair warning of

th

application of the aggravated felony provision

merit.

He may,

in fact, have

notice,

as the

sentencing judge

says, not what the

or

a stiffened

considered

aggravated offense because a repetitive one."

Nor does

new jeopardy

been unaware

Id.
___

to his crime have

of this;

but fair

"what the

statute

immigration officer might tell you."

At the

stated, is

time

of Forbes'

unlawful reentry,

enhanced sentence

based on

1326

plainly provided

prior conviction

for an

an

aggravated

felony.
C.

Conditional discharge sentence

______________________________

Forbes' final
calculating
level

claim is

his criminal

point for a

that the

history by

district
factoring

prior conditional discharge

court erred
in one

offense

sentence that he

received for pleading guilty to Unlawful Possession of Marijuana,

in violation

of N.Y.

claims that this

therefore does
which

adds

Penal Law

disposition was not a

not justify a

one

221.05

point

for

(McKinney 1989).

criminal conviction, and

point under
each

He

U.S.S.G.

sentence

4A1.1(c),

received

following

criminal conviction.
We

need not reach

evident that
excluding
category

the

no plain

the merits of

this claim

error occurred.

challenged violation

from

because it i

Forbes points
his

out that

criminal history

would reduce his designated sentencing range from 46-57

-22-

months to
departed

41-51 months.
downward, was

The sentence imposed, after

only

36 months.

Because

the court

the sentence

Forbes

received is

advocates as correct,

still below

the guidelines

we can find no plain error.

range

See Carrozza,
___ ________

4 F.3d at 87-91.
The decision of the district court is affirmed.
_______________________________________________

-23-

which he