United States v. Castillo Moronta ( 1994 )

USCA1 Opinion

        June 27, 1994           [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 93-2148 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                JOSE CASTILLO-MORONTA,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND


                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
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                                        Before

                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
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            David A. Cooper and Cooper & Sanchez on brief for appellant.
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            Edwin J. Gale, United States Attorney,  Margaret E. Curran and Ira
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        Belkin, Assistant United States Attorneys, on brief for appellee.
        ______


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                 Per Curiam.   Jose Castillo-Moronta pled  guilty under 8
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            U.S.C.     1326(b)(2) to  unlawful  reentry  into the  United

            States following his  deportation.  He now  advances a single

            challenge to his  sentence, arguing that  the court erred  in

            imposing a  16-level enhancement  to his offense  level under

            U.S.S.G.     2L1.2(b)(2)  on  the  ground  that  he had  been

            deported after  conviction for  an "aggravated felony."   His

            sole argument is that  the underlying offense triggering this

            enhancement--a  Rhode  Island  conviction  for  manufacturing

            marijuana--does  not constitute  an  aggravated felony.    We

            disagree and therefore summarily affirm.  See Loc. R. 27.1.
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                 Echoing  the   definition  contained   in  8  U.S.C.    

            1101(a)(43), the  commentary to    2L1.2  defines "aggravated

            felony" to include "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) ...."

            U.S.S.G.   2L1.2, comment. (n.7).  The commentary also states

            that the term encompasses such offenses "whether in violation

            of federal or state  law."  Id.   The term "drug  trafficking
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            crime,"  in  turn, is  defined in  18  U.S.C.    924(c)(2) 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. 951 et seq.), or

            the Maritime Drug Law Enforcement Act (46 U.S.C.App.  1901 et

            seq.)."  Accordingly, for  a drug offense to fall  within the



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            scope  of     924(c)(2) and  thus  within  the definition  of

            aggravated  felony, it  must meet  two criteria:  "first, the

            offense  must   be  punishable  under  one   of  these  three

            enumerated  statutes;  and  second,  the offense  must  be  a

            felony."   United States v.  Forbes, 16 F.3d  1294, 1301 (1st
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            Cir. 1994); accord, e.g.,  Amaral v. I.N.S., 977 F.2d  33, 35
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            (1st Cir. 1992). 

                 Both    of   these   criteria    are   satisfied   here.

            Manufacturing a controlled substance, including marijuana, is

            specifically proscribed by 21  U.S.C.   841(a)(1).   And such

            an offense constitutes a felony.   As we explained in both of

            the decisions just cited, a felony is defined in  21 U.S.C.  

            802(13)  as  "any  Federal  or State  offense  classified  by

            applicable  Federal or  State law  as a  felony."1   Under 18

            U.S.C.     3559(a), an  offense is  a  felony if  the maximum

            authorized  term of imprisonment exceeds  one year.2  Both 21

            U.S.C.     841  and  R.I.  Gen.  Laws     21-28-4.01(A)(2)(a)

            prescribe a maximum prison term in excess of one year for the

            offense of manufacturing a controlled substance. 



                                
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            1.  See also United States  v. Aymelek, 926 F.2d 64,  71 (1st
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            Cir.  1991) ("Although state  law must  still be  examined to
            ascertain  the   elements  of   a   predicate  offense,   the
            conviction's   ultimate    classification,   for   guidelines
            purposes, is determined by federal law.") (applying   2L1.2).


            2.  Rhode  Island law is to  the same effect.   See R.I. Gen.
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            Laws   11-1-2.  

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                 Defendant  does  not  take  issue with  this  reasoning.

            Rather,  he contends  that  a "mechanical  application" of   

            2L1.2  here  results  in  a  sentence  that  exaggerates  the

            seriousness  of his  offense.  He  emphasizes that,  far from

            being involved in  the manufacture  or sale of  drugs on  any

            large-scale basis,  he was found  in possession  of a  single

            marijuana   plant   (along  with   a   half-smoked  marijuana

            cigarette) which he claims was intended for  his personal use

            only.   Yet this argument has no bearing on the applicability

            of    2L1.2's 16-level  enhancement; rather, it  concerns the

            propriety  of  a possible  downward  departure.   See,  e.g.,
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            United  States v.  Hinds, 803  F. Supp.  675 (W.D.N.Y.  1992)
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            (departing  downward  under  analogous circumstances),  aff'd
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            mem., 992 F.2d 321 (2d Cir. 1993).  Indeed, a good portion of
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            the sentencing hearing was devoted to the question of whether

            such  a   departure  was  warranted.     The  district  court

            ultimately  decided,   in  its  discretion,   not  to  depart

            downward,   relying   on   other  factors   indicating   that

            defendant's  overall conduct  was less  benign than  it might

            first appear.3   Defendant here has advanced no  challenge to

                                
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            3.  For  example,   defendant  was  convicted   in  1988   of
            possession of heroin.   In 1991, he was  convicted of using a
            false social  security number and making  false statements to
            purchase eleven  pistols and  a shotgun.    Defendant was  on
            supervised  release from  the firearms  offenses when  he was
            arrested on the marijuana  charge.  Among the items  found in
            his apartment at that  time were over $28,000 in  cash hidden
            behind  a refrigerator panel  and 27 boxes  of empty glassine
            packets, which  according to  the police  report are used  to

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            this determination, and we  of course would lack jurisdiction

            to entertain  it had he done so.  See, e.g., United States v.
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            Gifford, 17 F.3d 462, 473 (1st Cir. 1994).
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                 Affirmed.
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            package heroin.   And in  1993, following his  return to  the
            United States  (which he  explained was  for  the purpose  of
            visiting  his three  daughters), defendant  was  arrested for
            attempting to  pass  counterfeit currency;  he thereafter  is
            said  to have provided police officials with a false name and
            date  of birth in  an attempt to  obstruct the investigation.
            These charges remained pending at the time of sentencing. 

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