U.S. v. Cuevas

• Decision Date: 09 January 1996
• Docket Number: No. 95-1730,95-1730
• Parties: UNITED STATES of America, Appellee, v. Rafael Antonio CUEVAS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 778

75 F.3d 778

UNITED STATES of America, Appellee, v. Rafael Antonio CUEVAS, Defendant, Appellant.

No. 95-1730.

United States Court of Appeals First Circuit.

Heard Jan. 9, 1996.

Decided Feb. 7, 1996.

Louis B. Abilheira, Warren, RI, for appellant.

Margaret E. Curran, Assistant United States Attorney, Providence, RI, with whom Sheldon Whitehouse, United States Attorney, and Edwin J. Gale, Assistant United States Attorney, were on brief, for the United States.

Before TORRUELLA, Chief Judge, ROSENN, Senior Circuit Judge, ^* and LYNCH, Circuit Judge.

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 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 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 Guidelines ³ 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 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 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 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, 75 S.Ct. 576, 99 L.Ed. 1239 (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 curiam), cert. denied, --- U.S. ----, 116 S.Ct. 59, 133 L.Ed.2d 23 (1995); Ruis-Rubio v. INS, 380 F.2d 29 (9th Cir.) (per curiam), cert. denied, 389 U.S. 944, 88 S.Ct. 302, 19 L.Ed.2d 302 (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 probation ⁸ 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 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, 104 S.Ct. 175, 78 L.Ed.2d 157 (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, 103 S.Ct. 986, 74 L.Ed.2d 845 (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, 103 S.Ct. at 992, 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, 103 S.Ct. at 991.

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. 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...