U.S. v. Restrepo-Aguilar, RESTREPO-AGUILA

• Citation: 74 F.3d 361
• Decision Date: 09 January 1996
• Docket Number: D,RESTREPO-AGUILA,No. 95-1660,95-1660
• Parties: UNITED STATES of America, Appellee, v. Augusto DeJesusefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 361

74 F.3d 361

UNITED STATES of America, Appellee, v. Augusto DeJesus RESTREPO-AGUILAR, Defendant, Appellant.

No. 95-1660.

United States Court of Appeals, First Circuit.

Heard Jan. 9, 1996.

Decided Jan. 30, 1996.

Robert D. Watt, Jr., Providence, RI, for appellant.

Margaret E. Curran, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, and Craig N. Moore, Assistant United States Attorney, were on brief, Providence, RI, for U.S.

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

LYNCH, Circuit Judge.

Augusto Restrepo-Aguilar pleaded guilty to a charge of unlawful reentry into the United States after deportation. At sentencing, the district court added 16 offense levels under U.S.S.G. Sec. 2L1.2(b)(2) to Restrepo-Aguilar's Guidelines sentence, based on a finding that he had been previously "deported after a conviction for an aggravated felony." The sole issue presented is whether the term "aggravated felony" as used in Sec. 2L1.2(b)(2) of the Guidelines includes as a "felony" a state drug possession offense that would be only a misdemeanor under federal law, but is a felony under the laws of the convicting state. This question under the Guidelines is one of first impression in this Circuit, and we answer it in the affirmative. We hold that the district court was required to increase the defendant's Guidelines sentence by 16 offense levels, and so affirm.

I

In 1985, Restrepo-Aguilar, a citizen of Colombia, was arrested by Rhode Island authorities on a charge of violating the state's drug laws. After cooperating with the state in obtaining the arrests of others, he pleaded nolo contendere to an amended charge of simple cocaine possession, a felony under Rhode Island law, punishable by a maximum of three years in prison. He was sentenced to 2 years of probation.

In December of 1988, a federal deportation warrant issued for Restrepo-Aguilar's arrest. He was finally apprehended on July 7, 1994, in Miami, Florida and was subsequently deported. In January of 1995, he resurfaced illegally in Providence, Rhode Island, where he was arrested by Immigration and Naturalization Service agents. He admitted that he had never applied for permission to reenter the country. He was indicted and pleaded guilty to one count of unlawful reentry into the United States after deportation, in violation of 8 U.S.C. Sec. 1326.

The defendant was sentenced under Sec. 2L1.2 of the Sentencing Guidelines. ¹ That guideline sets a base offense level ("BOL") of 8 for a conviction of unlawfully entering or remaining in the United States. The guideline then provides: "If the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels." U.S.S.G. Sec. 2L1.2(b)(2) (Nov. 1994). ²

The sentencing court concluded that the defendant's pre-deportation state conviction for possession of cocaine, a felony under Rhode Island law, qualified as an "aggravated felony" within the meaning of Sec. 2L1.2(b)(2), and accordingly increased defendant's BOL from 8 to 24. With a three-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1, and a criminal history category of II, defendant's Guidelines sentencing range was 41-51 months. ³ The court imposed a final sentence of 41 months.

Restrepo-Aguilar contends that because a first-time conviction for simple possession of cocaine is punishable only as a misdemeanor under federal law, ⁴ his 1985 state conviction for cocaine possession cannot be classified as an "aggravated felony" for purposes of the Sentencing Guidelines. The government argues that an offense need not be punishable as a felony under federal law in order to be an "aggravated felony" under Sec. 2L1.2(b)(2) so long as the offense is punishable as a felony under the law of the state of conviction.

II

The controlling definition of the term "aggravated felony" is set forth in application note 7 to U.S.S.G. Sec. 2L1.2. That commentary 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. Sec. 802), including any drug trafficking crime as defined in 18 U.S.C. Sec. 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. Sec. 2L1.2, comment. (n. 7) (Nov. 1994). Section 924(c)(2) provides, in turn:

[T]he term "drug trafficking crime" means 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. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App. 1901 et seq.).

18 U.S.C. Sec. 924(c)(2) (emphasis added).

Restrepo-Aguilar contends that his 1985 cocaine possession offense is excluded from the definition of "drug trafficking crime" and is not an "aggravated felony" under Sec. 2L1.2(b)(2) because it would be classified as a misdemeanor under federal law. ⁵ The question posed, then, is whether first-time cocaine possession, "whether in violation of federal or state law," U.S.S.G. Sec. 2L1.2, comment. (n. 7), is an "aggravated felony" if it is a felony under applicable state law but is punishable only as a misdemeanor under the federal Controlled Substances Act ("CSA").

Restrepo-Aguilar bases his argument on a particular reading of the Guidelines and on the recent decision by the Board of Immigration Appeals in In Re L-G-, Interim Decision 3254, 1995 WL 582051 (BIA Sept. 27, 1995), interpreting the term "aggravated felony" under the immigration laws. He appropriately concedes that the BIA's decision is flatly inconsistent with the Second Circuit's opinion in Jenkins v. INS, 32 F.3d 11 (2d Cir.1994), and that there is language in various opinions by this Circuit disfavoring his position. We believe that the text of the relevant provisions forecloses his argument and that the Second Circuit's reading is preferable to that of the BIA.

The defendant's interpretation is not consistent with the definition of "aggravated felony" set forth in the commentary to Sec. 2L1.2. His argument is contrary to the application note's instruction that the definition is to be applied to offenses "whether in violation of federal or state law." It also contradicts the definition of "felony" explicitly provided in the CSA, which is referred to in the application note.

Defendant reads 18 U.S.C. Sec. 924(c)(2) as if it defined "drug trafficking crime" as any offense punishable as a felony under the CSA. But that is not how Sec. 924(c)(2) is written. The statutory definition plainly does not require that an offense, in order to be a drug trafficking crime, be subject to a particular magnitude of punishment if prosecuted under the CSA, as defendant's preferred reading would suggest. Rather, the definition requires only that the offense be a "felony punishable" thereunder. Indeed, this court has expressly interpreted Sec. 924(c)(2)'s definition of "drug trafficking crime" as encompassing two separate elements: (1) that the offense be punishable under the Controlled Substances Act (or one of the other two statutes identified); and (2) that the offense be a felony. United States v. Forbes, 16 F.3d 1294, 1301 (1st Cir.1994); see also United States v. Rodriguez, 26 F.3d 4, 6 (1st Cir.1994); Jenkins, 32 F.3d at 14 (following Forbes and Amaral v. INS, 977 F.2d 33, 36 n. 3 (1st Cir.1992)). We adhere to this established interpretation and reject the defendant's contrary construction.

Section 924(c)(2)'s definition of "drug trafficking crime" by its terms includes "any felony" that is criminalized under the CSA. The definition does not limit its application to offenses that would be classified as felonies if prosecuted under federal law. Furthermore, the CSA itself defines a felony as "any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. Sec. 802(13). Under the CSA's unambiguous definition, a state offense (of the type within the scope of the CSA) which is classified as a felony under the law of the convicting state would clearly qualify as a felony for that definition's purposes, even if the offense could be punished only as a misdemeanor under federal law. See Forbes, 16 F.3d at 1301 n. 10; Amaral, 977 F.2d at 36 n. 3. As Judge Walker has cogently observed,

Section 802(13)'s explicit reliance on state classifications represents a Congressional choice to include within the category of 'felony' offenses under the Controlled Substances Act ... those crimes deemed serious enough by states to warrant felony treatment within their jurisdictions.

Jenkins, 32 F.3d at 14.

There is no reason to suppose that either Congress or the Sentencing Commission, in defining "aggravated felony" by reference to 18 U.S.C. Sec. 924(c)(2), which in turn specifically relies on the CSA, was unaware of or chose to dismiss the definition of "felony" provided there. Indeed, quite the opposite is likely to be true. The CSA's primary purpose in carving out a class of offenses as felonies is precisely the same as Congress' purpose in doing so in 8 U.S.C. Sec. 1326(b) and the Sentencing Commission's purpose in implementing that statute in Sec. 2L1.2(b): to establish a basis for the imposition of sentence enhancements. See, e.g., 21 U.S.C. Sec. 841(b) (providing increased maximum sentence for defendants with a prior felony conviction). The Commission intended the "aggravated felony" sentence enhancement to operate harmoniously with the specific definition given to the term "felony" in the CSA, the very statute by reference to which "aggravated felony" is ultimately defined. Cf. Greenwood Trust Co. v. Commonwealth of Mass., 971 F.2d 818, 827 (1st Cir.1992) (when a statute borrows language from another statute, the two statutes should be read consistently), cert. denied, 506...