United States v. Fosher ( 1997 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 96-1473

    UNITED STATES,

    Appellee,

    v.

    MICHAEL P. FOSHER,

    Defendant - Appellant.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________

    ____________________

    Before

    Torruella, Chief Judge, ___________

    Cyr, Senior Circuit Judge, ____________________

    and Stahl, Circuit Judge. _____________

    _____________________

    George F. Gormley, by appointment of the court, with whom __________________
    John D. Colucci and Gormley & Colucci, P.C. were on brief for _______________ ________________________
    appellant.
    Alexandra Leake, Assistant United States Attorney, with whom _______________
    Donald K. Stern, United States Attorney, was on brief for _________________
    appellee.



    ____________________

    August 27, 1997
    ____________________















    TORRUELLA, Chief Judge. On July 6, 1995, Defendant- TORRUELLA, Chief Judge. ___________

    Appellant Michael P. Fosher ("Fosher") pled guilty to four counts

    of an indictment, which charged him with racketeering conspiracy,

    in violation of 18 U.S.C. 1962(d), racketeering, in violation

    of 18 U.S.C. 1962(c), interstate transportation of stolen

    property, in violation of 18 U.S.C. 2314, and conspiracy, in

    violation of 18 U.S.C. 371. On March 5, 1996, the sentencing

    court imposed upward adjustments for an unusually vulnerable

    victim and for Fosher's role in the offense. The court further

    determined that Fosher's armed bank robbery conviction under the

    Federal Youth Corrections Act, 18 U.S.C. 5005 et seq. ("FYCA"), _______

    previously set aside pursuant to that Act, was properly included

    in the Criminal History Category calculation. The district court

    calculated Fosher's Total Offense Level at 33 and his Criminal

    History Category at III, resulting in a guideline sentencing

    range of 168 to 210 months. The government requested that, in

    light of Fosher's substantial assistance, the court grant a

    downward departure under 5K1.1 and impose a 60 month sentence.

    The court granted the government's downward departure motion, and

    sentenced Fosher to 78 months' imprisonment. Fosher appeals his

    sentence, arguing that the district court erred in its rulings

    regarding the unusually vulnerable victim and the role in the

    offense adjustments, as well as its inclusion in Fosher's

    Criminal History Category of his set-aside conviction under the

    FYCA. For the reasons set forth herein, we reverse and remand in

    part and affirm in part.


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    BACKGROUND BACKGROUND

    In presenting the facts, we consult the uncontested

    portions of the Presentence Report ("PSR"), as well as the

    sentencing hearing transcript. United States v. Lagasse, 87 F.3d _____________ _______

    18, 20 (1st Cir. 1996).

    In December 1991, Fosher called Michael Chinn ("Chinn")

    from Florida and told Chinn that he would pay Chinn's airfare to

    Florida so that they could do "something big." Chinn flew to

    Fort Lauderdale with Anthony Corso ("Corso"). The airline

    tickets for both were purchased by Fosher. Chinn stayed with

    Fosher, while Corso stayed with his father, Philip Corso. Upon

    arrival in Fort Lauderdale, Chinn and Corso were taken by a

    friend of Philip Corso to a restaurant to meet Fosher and Joe

    Bomengo ("Bomengo"). During lunch, Fosher told them about a

    house he had targeted for a home invasion. Donald Marks Schoff

    ("Schoff") had told Fosher that the house contained $500,000 in

    gold coins and a five carat diamond ring and was occupied by a 62

    year old woman, her daughter and granddaughter. Fosher stated

    that he wanted Chinn and Corso to enter the house, while he

    waited outside in a van and Schoff waited at the end of the

    street listening to a police scanner. They also discussed using

    weapons and Fosher unsuccessfully sought weapons from an

    acquaintance he ran into in the restaurant.

    Thereafter, Fosher, Chinn, Corso, Bomengo, and Schoff

    met Philip Corso at Corso's house. Schoff described where the


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    money was kept. The participants looked at some guns at Philip

    Corso's house and wanted to borrow the guns. Philip Corso

    declined to let the group use the guns because the guns "were

    hardly needed since the victim was an older woman." At the

    meeting, Bomengo suggested that the participants pose as florist

    delivery men. Fosher determined that he would rent a white

    minivan to resemble a florist delivery truck. During the

    discussion, Fosher made decisions and assigned roles to the

    participants.

    On the morning of January 8, 1992, Fosher, Chinn,

    Corso, and Schoff executed the home invasion. Fosher, Chinn, and

    Corso drove to the victim's house in the van, while Schoff

    followed in a second car. On the way to the victim's house, they

    purchased a floral arrangement and gloves and "ties" to bind the

    victims. Corso and Chinn went to the front door with the

    flowers. When the victim came to the door, they entered. Corso

    asked her for the keys to the floor safe in the garage and

    attempted to open it. Fosher and Schoff entered the garage to

    help him. Upon opening the safe, they discovered only $500,000

    worth of gold coins. They approached the victim and asked her

    where the other safe and the five carat diamond ring were. The

    men took the victim to her jewelry lockbox and took jewelry

    valued at $23,000. When they were unable to find a five carat

    diamond, Fosher told Chinn, within the hearing of the victim, "if

    she doesn't tell you where the other safe is, shoot her." Chinn

    told the victim that he would not let them hurt her.


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    When they left the victim's house, the four went to

    Fosher's condominium, where they divided the coins. Fosher made

    Corso throw away the jewelry for fear that it might allow someone

    to identify them. Corso left Florida soon thereafter, taking

    $80,000 in coins with him to Massachusetts. Chinn also returned

    to Massachusetts, carrying cash received from Fosher after the

    coins had been melted down.

    On May 11, 1995, a federal grand jury returned a five

    count indictment against Fosher and Corso. On June 27, 1995,

    Fosher executed a plea and cooperation agreement with the United

    States Attorney's Office, agreeing to plead guilty to four counts

    of the indictment.1 The agreement provided that, at sentencing,

    the government would take the position under the United States

    Sentencing Guidelines ("U.S.S.G.") that Fosher's offense level

    was 33, for which the guideline sentencing range was 135 to 168

    months. The agreement noted that Fosher objected to this

    calculation and reserved the right to argue for a lower offense

    level. Fosher agreed to cooperate with the government and,

    assuming he provided substantial assistance, the U.S. Attorney

    agreed to file a motion for a two level downward adjustment under

    U.S.S.G. 5K1.1.

    On July 6, 1995, Fosher pled guilty to Counts One

    through Four. At his March 5, 1996, sentencing hearing, the

    probation department presented its PSR, in which the department

    ____________________

    1 The United States Attorney's Office agreed to dismissed the
    fifth count.

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    concluded that the four counts constituted seven groups of

    offenses. The probation department calculated the Adjusted

    Offense Level for each group and determined that the group

    relating to an invasion and robbery, executed by Fosher and

    others, of the home of a 62 year old Fort Lauderdale woman had

    the highest Adjusted Offense Level at 33. This included a two-

    level upward adjustment for an unusually vulnerable victim under

    U.S.S.G. 3A1.12 and a four-level upward adjustment for being a

    leader or organizer of five or more participants under U.S.S.G.

    3B1.1.3 After applying the grouping rules under U.S.S.G. 3D1.4

    and providing for a downward adjustment for acceptance of

    responsibility, the probation department concluded that Fosher's

    Total Offense Level was 33.

    The probation department concluded that Fosher's

    Criminal History Category was III, including in the calculation a

    conviction for armed bank robbery under the FYCA.


    ____________________

    2 Section 3A1.1(b) provides in relevant part:

    If the defendant knew or should have known
    that a victim of the offense was unusually
    vulnerable due to age, physical or mental
    condition, . . . increase by 2 levels.

    3 Section 3B1.1(a) provides in relevant part:

    Based on the defendant's role in the offense,
    increase the offense level as follows:

    (a) If the defendant was an organizer
    or leader of a criminal activity
    that involved five or more
    participants or was otherwise
    extensive, increase by 4 levels.

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    On February 26, 1996, Fosher filed objections to the

    upward adjustments in calculation of the offense level for the

    Fort Lauderdale home invasion and to the inclusion of his FYCA

    conviction in the Criminal History Category calculation. He

    argued that the FYCA conviction should not be considered because

    it had been "set aside" pursuant to the FYCA on September 24,

    1982.

    At the sentencing hearing, the district court agreed

    with the findings in the PSR and imposed upward adjustments for

    an unusually vulnerable victim and for Fosher's role in the

    offense. The court further determined that Fosher's FYCA

    conviction was properly included in the Criminal History Category

    calculation. The district court, therefore, set Fosher's Total

    Offense Level at 33 and his Criminal History Category at III,

    resulting in a guideline sentencing range of 168 to 210 months.

    The government submitted a motion requesting that, in light of

    Fosher's substantial assistance, the court grant a downward

    departure and impose a 60-month sentence. The court allowed the

    government's 5K1.1 downward departure motion, but sentenced

    Fosher to 78 months' imprisonment.

    DISCUSSION DISCUSSION

    I. Unusually vulnerable victim I. Unusually vulnerable victim

    The government insists that the issue of whether the

    victim of the Fort Lauderdale home invasion was "unusually

    vulnerable" is a factual issue and therefore that the clear error

    standard applies. Fosher argues vigorously that the facts being


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    undisputed, the only question presented is a legal one of the

    sentencing court's application of the guidelines to the facts,

    requiring de novo review. "[Q]uestions . . . of the proper ________

    application of a legal standard to undisputed facts . . . are

    usually called 'mixed questions' of fact and law." United States _____________

    v. Wright, 973 F.2d 437, 442 (1st Cir. 1989). As our cases in ______

    this context amply demonstrate, such issues of sentencing

    application are often difficult to pigeonhole as either

    predominantly factual or legal. See, e.g., United States v. ___ ____ _____________

    Newman, 982 F.2d 665, 671 (1st Cir. 1992); United States v. ______ _____________

    Pilgrim Market Corp., 944 F.2d 14, 16 (1st Cir. 1991); United _____________________ ______

    States v. Cousens, 942 F.2d 800, 805-07 (1st Cir. 1991); United ______ _______ ______

    States v. Rule Indus., 878 F.2d 535, 542 n.7 (1st Cir. 1989). ______ ___________

    Because we remand the unusually vulnerable victim issue to the

    district court we need not decide the difficult standard of

    review question.

    Section 3A1.1(b) of the Sentencing Guidelines calls for

    a two level upward enhancement

    [i]f the defendant knew or should have known
    that a victim of the offense was unusually
    vulnerable due to age, physical or mental
    condition, or that a victim was otherwise
    particularly susceptible to the criminal
    conduct.

    We have recognized that this guideline "is primarily concerned

    with the impaired capacity of the victim to detect or prevent the

    crime, rather than the quantity of harm suffered by the victim."

    United States v. Gill, 99 F.3d 484, 486 (1st Cir. 1996). The _____________ ____

    question is whether "'a particular victim was less likely to

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    thwart the crime, rather than more likely to suffer harm if the

    crime is successful.'" Id. (quoting United States v. Kaye, 23 ___ _____________ ____

    F.3d 50, 54 (2d Cir. 1994)).

    We have discouraged sentencing courts from making an

    "unusually vulnerable victim" finding based solely on the

    victim's membership in a particular class. Id. at 487; United ___ ______

    States v. Feldman, 83 F.3d 9, 15 (1st Cir. 1996) ("[I]n order to ______ _______

    warrant a finding of unusual vulnerability, there must be some

    evidence, above and beyond mere membership in a large class, that

    the victim possessed a special weakness that the defendant

    exploited."). At the same time, we have recognized that in some

    cases inferences to be drawn regarding particular class

    characteristics may be so strong that "there can be little doubt

    about unusual vulnerability of class members within the meaning

    of section 3A1.1." Gill, 99 F.3d at 487. The Sentencing ____

    Commission recognized this when it used as an example under this

    section the robbery of someone confined to a wheelchair. See ___

    U.S.S.G. 3A1.1 comment. n.2; see also Gill, 99 F.3d at 487. ________ ____

    We are concerned with the application of section 3A1.1

    in the context of this case. The PSR revealed that Fosher

    surveyed the victim's home and determined that it was occupied by

    an elderly woman, her daughter, and her daughter's infant.

    Following this surveillance, the perpetrators declined the use of

    weapons to commit the robbery. Based on the victim's age and the

    perpetrators' decision that the use of weapons would not be

    necessary, the district court concluded that Fosher knew or


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    should have known that the victim in this case would have

    "impaired capacity" to prevent the entry into and robbery of her

    home. From our review of the record, it appears the district

    court failed to address the "individual characteristics" required

    to support a finding that a particular victim was unusually

    vulnerable. Because of this conclusion, we must remand this

    issue to the district court for its consideration.








































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    II. Role in the offense II. Role in the offense

    We review a district court's role in the offense

    determinations for clear error. See United States v. D'Andrea, ___ _____________ ________

    107 F.3d 949, 956 (1st Cir. 1997). A court making a four-level

    role-in-the-offense adjustment under U.S.S.G. section 3B1.1(a)

    must first determine "whether the defendant acted as an

    organizer/leader of a specific criminal activity. If so, the

    court asks the separate question of whether that criminal

    activity involved five or more participants, defined in the

    Commentary as persons who are 'criminally responsible for the

    commission of the offense . . . .'" United States v. Preakos, _____________ _______

    907 F.2d 7, 10 (1st Cir. 1990) (quoting U.S.S.G. 3B1.1,

    Commentary). In determining a defendant's role in the offense,

    the sentencing court need not look only to the elements

    underlying the conviction, but may consider "the whole of the

    defendant's relevant conduct." United States v. Savoie, 985 F.2d _____________ ______

    612, 615 (1st Cir. 1993); see also U.S.S.G. Ch. 3, Pt. B, intro. ________

    comment. Fosher does not challenge the sentencing court's status

    determination. His argument focuses on whether the district

    court properly found five participants in the home invasion and

    robbery.

    The commentary defines a "participant" as "a person who

    is criminally responsible for the commission of the offense, but

    need not have been convicted." U.S.S.G. 3B1.1 comment. app.

    n.1. Fosher concedes that there were four criminally responsible

    participants: him, Chinn, Corso, and Schoff. At the sentencing


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    hearing, the government argued that both Philip Corso and Bomengo

    were criminally responsible participants even though they did not

    actually participate in the robbery. We need only confirm that

    one of them was a criminally responsible participant to affirm

    the district court's upward adjustment. Philip Corso's

    assistance in devising the perpetrator's scheme is sufficient to

    find that he is a participant within the meaning of the

    guidelines. Philip Corso assisted Schoff in targeting the

    victim's home for the commission of this robbery, he provided the

    home in which the planning meeting took place, he participated in

    the planning meeting with the four robbery perpetrators, and, in

    response to the perpetrators' discussion regarding the use of

    weapons, he advised against the necessity of weapons to gain

    entry into the victim's home. Such acts were sufficient to find

    Philip Corso to be a participant in the commission of this

    robbery. We therefore find no error in the district court's role

    in the offense determination.

    III. Criminal History Category III. Criminal History Category

    In 1977, Fosher was convicted of armed bank robbery

    under the Federal Youth Corrections Act, 18 U.S.C. 5005 et seq. _______

    (repealed 1984). In 1982, pursuant to the Act's set-aside

    provisions, see 18 U.S.C. 5021, Fosher was unconditionally ___

    discharged and his conviction was set aside. Fosher challenges

    the sentencing court's inclusion of his FYCA set-aside conviction

    in the calculation of his Criminal History Category. He claims

    that his set-aside conviction is to be treated as an "expunged"


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    conviction under U.S.S.G. 4A1.2. We have yet to address the

    issue of whether a conviction set aside under the FYCA should be

    counted under the Sentencing Guidelines.4 When faced with this

    issue, a majority of our sister circuits have ruled that an FYCA

    conviction may properly be included in calculating a defendant's

    criminal history, see United States v. Moreno, 94 F.3d 1453 (10th ___ _____________ ______

    Cir. 1996); United States v. Nicolace, 90 F.3d 255 (8th Cir. ______________ ________

    1996); United States v. Wacker, 72 F.3d 1453 (10th Cir. 1996); ______________ ______

    United States v. Levi, 45 F.3d 453 (D.C. Cir. 1995); United ______________ ____ ______

    States v. Ashburn, 20 F.3d 1336 (5th Cir. 1994); United States v. ______ _______ _____________

    Gardner, 860 F.2d 1391 (7th Cir. 1988), while only one has _______

    determined that FYCA convictions are similar to expunged

    convictions and should not be considered under the guidelines,

    see United States v. Kammerdiener, 945 F.2d 300 (9th Cir. 1991).5 ___ _____________ ____________
    ____________________

    4 Fosher claims that two opinions of this circuit relating to
    the FYCA support his contention that his set-aside convictions
    may not be included in calculating his criminal history. Both
    opinions are inapposite, as neither was decided under the
    Sentencing Guidelines. See United States v. Doe, 732 F.2d 229, ___ _____________ ___
    232 (1st Cir. 1984) (ruling that FYCA does not allow record of
    conviction to be destroyed and noting that the FYCA set aside
    provision "prevents the fact of conviction from being used to the
    youth offender's legal detriment"); Mestre Morera v. INS, 462 _____________ ___
    F.2d 1030, 1032 (1st Cir. 1972) (in ruling that FYCA conviction
    may not be used to deport petitioner, finding that purpose of
    FYCA is to give an offender "a second chance, free of all taint
    of a conviction").

    5 Fosher also cites opinions from two other circuits for
    support, but none of those opinions ruled that FYCA set-aside
    convictions are not to be counted under the guidelines criminal
    history provisions. See United States v. Corrado, 53 F.3d 620, ___ _____________ _______
    621 n.1 (3d Cir. 1995) (noting that government conceded that FYCA
    conviction should not be counted); United States v. Doe, 980 F.2d _____________ ___
    876 (3d Cir. 1992) (ruling that FYCA's set aside provisions
    called for the actual removal of any records related to
    conviction); United States v. Beaulieau, 959 F.2d 375, 380-81 (2d _____________ _________

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    Section 4A1.2(j) provides that expunged convictions are

    not to be counted in determining Criminal History Category. The

    Commentary provides the following:

    A number of jurisdictions have various
    procedures pursuant to which previous
    convictions may be set aside or the defendant
    may be pardoned for reasons unrelated to
    innocence or errors of law, e.g., in order to ____
    restore civil rights or to remove the stigma
    associated with a criminal conviction.
    Sentences resulting from such convictions are
    to be counted. However, expunged convictions
    are not to be counted.

    U.S.S.G. 4A1.2, comment app. note 10. A set-aside under the

    FYCA is made for "reasons unrelated to innocence or errors of

    law" of the type that the guidelines contemplate are to be

    considered in calculating Criminal History. The FYCA, section

    5021, provided:

    (a) Upon the unconditional discharge by the
    Commission of a committed youth offender
    before the expiration of the maximum sentence
    imposed upon him, the conviction shall be
    automatically set aside and the Commission
    shall issue to the youth offender a
    certificate to that effect.

    (b) Where a youth offender has been placed
    on probation by the court, the court may
    thereafter, in its discretion,
    unconditionally discharge such youth offender
    from probation prior to the expiration of the
    maximum period of probation theretofore fixed
    by the court, which discharge shall
    automatically set aside the conviction, and
    the court shall issue to the youth offender a
    certificate to that effect.


    ____________________

    Cir. 1992) (holding that sealed record under Vermont juvenile
    statute was improperly considered in criminal history
    calculation).

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    18 U.S.C. 5021 (repealed). The language of the statute does

    not call for expunging a youth offender's records, but instead

    mandates that the youth offender shall receive a certificate to

    the effect that the conviction has been set aside. A conviction

    under the FYCA is set aside not because of legal error or

    innocence, but because the offender's "post-offense conduct has

    persuaded the court to terminate his sentence of probation before

    the assigned completion date." United States v. McDonald, 991 _____________ ________

    F.2d 866, 871 (D.C. Cir. 1993) (analyzing a set-aside conviction

    under the District of Columbia's Youth Rehabilitation Act,

    analogous to the FYCA). The FYCA's use of the term "set aside"

    is not the same as the Guideline's treatment of "expunged"

    convictions, but is more analogous to the Guideline's definition

    of a "set aside" conviction, one that is to be counted in the

    criminal history calculation. Moreover, had Congress intended

    that all records of a youthful conviction under the FYCA be made

    completely unavailable or destroyed such that they could no

    longer be considered for any future purposes, Congress could have

    specified the remedy of expungement rather than a certificate of

    set-aside. See United States v. Doe, 732 F.2d 229, 232 (1st Cir. ___ _____________ ___

    1984) (in affirming district court's refusal to destroy FYCA

    records, noting that ordering expungement under the statute would

    require a rewriting of the statute); Ashburn, 20 F.3d at 1342 _______

    (collecting cases).

    In determining the import of this provision, the

    Supreme Court noted in dicta that the FYCA was intended to


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    address the "numerous civil and social disabilities" that

    accompany a conviction, recognizing that "a conviction may result

    in the loss of the rights to vote, to hold a public office, to

    serve on a jury, and to practice various occupations and

    professions." Tuten v. United States, 460 U.S. 660, 664 (1983). _____ ______________

    Although the FYCA was intended to benefit a youthful offender by

    providing a second chance to start life without the stigma of a

    criminal conviction, id. ("Congress' purpose in adopting 5021 ___

    was to promote the rehabilitation of youth offenders by providing

    a substantial incentive for positive behavior while serving a

    sentence under the YCA."); Webster, 606 F.2d at 1234-35 (noting _______

    that Congress "intended to give youthful ex-offenders a fresh

    start, free from the stain of a criminal conviction, and an

    opportunity to clean their slates to afford them a second chance,

    in terms of both jobs and standing in the community"), it was not

    meant to allow a recidivist to avoid increased penalties based on

    earlier criminal convictions. See Ashburn, 20 F.3d at 1343 ___ _______

    ("[T]his beneficent offer of a 'second chance' to the immature

    offender should not be available as a shield for those whose

    original encounter with the criminal world is used as a

    springboard to a life of felonious conduct."); McDonald, 991 F.2d ________

    at 872 ("[I]f a juvenile offender turns into a recidivist, the

    case for conferring the benefit dissipates. Society's stronger

    interest is in punishing appropriately an unrepentant criminal."

    (citations omitted)). Thus, counting an FYCA set-aside




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    conviction in calculating a defendant's criminal history is not

    contrary to the purposes of the FYCA.

    Fosher further argues that consideration of the FYCA

    conviction violates the ex post facto clause, U.S. Const. art. I, _____________

    9, cl. 3, because the law increases the punishment for his 1977

    armed robbery conviction. An ex post facto law is one "'that ______________

    changes the punishment, and inflicts a greater punishment, than

    the law annexed to the crime, when committed.'" Dominique v. _________

    Weld, 73 F.3d 1156, 1162 (1st Cir. 1996) (quoting Miller v. ____ ______

    Florida, 482 U.S. 423, 429 (1987)). "The concern of the ex post _______ _______

    facto prohibition is to assure that legislative acts 'give fair _____

    warning of their effect and permit individuals to rely on their

    meaning until explicitly changed.'" United States v. Forbes, 16 _____________ ______

    F.3d 1294, 1301 (1st Cir. 1994) (quoting Miller, 482 U.S. at 430 ______

    (1987)). As the Supreme Court has recognized, a state habitual

    offender statute, which increased present penalties based on

    prior criminal conduct, is not an ex post facto law, because the _____________

    consideration of prior convictions imposes increased penalties to

    the "latest crime, which is considered to be an aggravated

    offense because a repetitive one." Gryger v. Burke, 334 U.S. ______ _____

    728, 732 (1948), quoted in Forbes, 16 F.3d at 1302. "Gryger thus _________ ______ ______

    recognized the legislature's authority to enact an enhanced

    penalty for future conduct preceded by a criminal conviction

    obtained prior to enactment of the enhanced penalty provision."

    Forbes, 16 F.3d at 1302. The district court's consideration of ______




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    Fosher's FYCA conviction in determining his criminal history

    category did not violate the ex post facto clause. _____________

    CONCLUSION CONCLUSION

    For the foregoing reasons, we reverse and remand in reverse remand _______ ______

    part, and affirm in part. affirm ______












































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