United States v. A. Baca-Valenzuela ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-1420
___________
United States of America, *
*
Appellee, *
* Appeal from the United
States
v. * District Court for the
* Western District of
Missouri.
Alfredo Baca-Valenzuela, *
also known as Alfredo V. Baca, *
*
Appellant. *
___________
Submitted:
June 11, 1996
Filed: July 7, 1997
___________
Before MAGILL, Circuit Judge,1 HENLEY, Senior Circuit
Judge, and DOTY, District Judge.2
1
The Honorable Frank J. Magill was a Circuit Judge in active service at the time
this case was submitted. He assumed senior status on April 1, 1997, before this
opinion was filed.
2
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
___________
-2-
HENLEY, Senior Circuit Judge.
Alfredo Baca-Valenzuela was indicted on one count of
illegally reentering the United States after being
deported subsequent to conviction of an aggravated
felony, in violation of 8 U.S.C. §§ 1326(a) & (b)(2).
Baca-Valenzuela pleaded guilty and was sentenced by the
district court 3 to 51 months in prison, three years
supervised release, and a special assessment fine of
$50.00.In his plea agreement, Baca-Valenzuela reserved
the right to contest several rulings of the district
court. On this appeal, Baca-Valenzuela raises four
challenges to his conviction and sentence. Finding no
merit to any of these challenges, we affirm.
Background
Consideration of the claims raised here requires a
brief review of events surrounding Baca-Valenzuela's
earlier federal conviction in 1987, his deportation from
the United States in 1992, as well as the 1995 conviction
and sentence from which the present appeal is taken.
Sometime in 1986 (or before) Baca-Valenzuela
illegally entered the United States for the first time.
In April 1987, Baca-Valenzuela was convicted in the
United States District Court for the District of Arizona
for aiding and abetting the possession of cocaine with
intent to distribute, in violation of 21 U.S.C. §
841(a)(1), and 18 U.S.C. § 2. He was sentenced to ten
3
The Honorable D. Brook Bartlett, Chief Judge, United States District Court for
the Western District of Missouri.
-3-
years in prison.
In 1987, upon learning of the conviction, the
Immigration and Naturalization Service (INS) issued to
Baca-Valenzuela an Order to Show Cause (why Baca-
Valenzuela should not be deported) and Notice of Hearing.
The INS, however, took no
-4-
further action on this Order to Show Cause.
At the time of the Arizona drug charge in 1987,
conviction of a felony -- such as the controlled
substances offense for which Baca-Valenzuela was arrested
-- was a deportable offense. 8 U.S. C. § 1251(a)(4)
(1987). Reentry into the United States after
deportation carried a maximum penalty of two years in
prison. 8 U.S.C.§ 1326 (1987)
While Baca-Valenzuela was imprisoned, Congress passed
statutes in 1988 and 1990 amending the relevant
provisions on illegal reentry after deportation.
First, the Anti-Drug Abuse Act of 1988 (1988 Act)
amended the Immigration and Nationality Act to provide
for a new maximum penalty of 15 years in prison for an
alien convicted of reentry after having been deported
subsequent to commission of an "aggravated felony."
Pub. L. No. 100-690, § 7345(b)(2), 102 Stat. 4181,
4471(1988), codified as amended at 8 U.S.C. § 1326(b)
(1988).
The Act also added a provision which defined the new
term "aggravated felony" as including "murder, any drug
trafficking crime as defined in section 924(c)(2) of
title 18, United States Code, or any illicit trafficking
in any firearms or destructive devices as defined in
section 921 of such title, or any attempt or conspiracy
to commit any such act, committed within the United
States." Pub. L. No. 100-690, § 7342, 102 Stat. 4181,
4469-70 (1988), codified as amended at 8 U.S.C. §
1101(a)(43)(1988).
Section 7345(b) of the 1988 Act provided that the
-5-
amendments setting forth enhanced penalties for aliens
who illegally reentered the United States after
conviction of a felony or aggravated felony "shall apply
to any alien who enters, attempts to enter, or is found
in, the United States on or after the date of the
enactment of this Act [November 18, 1988 ]." Pub. L. No.
100-690, § 7345(b), 102 Stat. 4181, 4471 (1988).
However, the Act did not specifically address the
question whether crimes committed before the effective
date should be counted as aggravated felonies for
purposes of the
-6-
new enhanced penalties.
Second, in the Immigration Act of 1990 (1990 Act),
Congress again addressed the deportation of aggravated
felons and their punishment for illegal reentry. Section
602 of the 1990 Act amended 8 U.S.C. § 1251 to provide
specifically that conviction of an aggravated felony was
grounds for deportation. Pub. L. No. 101-649, §
620(a)(2)(A)(iii), 104 Stat. 4978, 5080(1990). However,
by its terms, Section 602 of the 1990 Act did not apply
to deportation proceedings for which notice was provided
to the alien before March 1, 1991. Pub. L. No. 101-649,
§ 602(d), 104 Stat. 4978, 5082 (1990).
Section 501 of the 1990 Act also substantially
expanded the definition of "aggravated felony" to include
not only any drug trafficking crime under § 924(c)(2) but
also "any illicit trafficking in any controlled substance
(as defined in section 102 of the Controlled Substances
Act" as well as certain other money laundering and
violent offenses. Immigration Act of 1990, Pub. L. No.
101-649, § 501(a)(2), 104 Stat. 4978, 5048 (1990),
codified as amended at 8 U.S.C. § 1101(a)(43) (1990).4
4
After the 1990 amendment, Section 1101(a)(43) provided in full:
The term "aggravated felony" means murder, any illicit trafficking in any
controlled substance (as defined in section 802 of Title 21), including any
drug trafficking crime as defined in section 924(c)(2) of Title 18, or any
illicit trafficking in any firearms or destructive devices as defined in
section 921 of such title, any offense described in section 1956 of Title 18
(relating to laundering of monetary instruments), or any crime of violence
(as defined in section 16 of Title 18, not including a purely political
offense) for which the term of imprisonment imposed (regardless of any
suspension of such imprisonment) is at least 5 years, or any attempt or
-7-
The effective date provision in the 1990 Act stated
that it would "apply to offenses committed on or after
the date of the enactment of this Act [November 29,
1990]" except that the amendment expanding the definition
of aggravated felony to include illicit trafficking in
any controlled substance would "be effective as if
included in the enactment of section 7342 of the Anti-
Drug Abuse Act of 1988." Pub. L. No. 101-649, § 501(b),
104 Stat. 4978, 5048(1990).
Thus, after the 1988 and 1990 amendments, a
controlled substances offense, such as the one Baca-
Valenzuela had been convicted of in 1987, was classified
as an aggravated felony and the maximum penalty for
illegal reentry into the United States after deportation
for such an offense was increased from two to 15 years.5
One additional change in law occurred while Baca-
Valenzuela was imprisoned. Effective November 1, 1991,
the United States Sentencing Commission amended
Sentencing Guideline Section 2L1.2 by the addition of a
new subsection (b)(2), providing for a 16 level increase
in the base offense level of a defendant who illegally
conspiracy to commit any such act. Such term applies to offenses
described in the previous sentence whether in violation of Federal or State
law and also applies to offenses described in the previous sentence in
violation of foreign law for which the term of imprisonment was
completed within the previous 15 years.
8 U.S.C. § 1101(a)(43) (1990) (emphasis supplied).
5
Another amendment in 1994 further increased the penalty for unauthorized
reentry after deportation subsequent to an aggravated felony to 20 years in prison.
Pub. L. No. 103-322, § 130001(b)(2), 108 Stat. 1796, 2023 (1994)
-8-
reentered the United States after having been previously
deported following conviction of an aggravated felony.
U.S.S.G. § 2L1.2(b)(2).6
6
U.S.S.G. § 2L1.2 provides a base offense level of eight for illegal reentry into
the United States. Subsection (b) provides:
(b) Specific Offense Characteristics. If more than one applies, use the
greater:
(1) If the defendant previously was deported after a conviction for
a felony, other than a felony involving violation of the immigration
laws, increase by 4 levels.
(2) If the defendant previously was deported after a
conviction for an aggravated felony, increase by 16 levels.
U.S.S.G. § 2L1.2(b) (emphasis supplied).
The Application Notes to this Section explicitly reference the definition of
aggravated felony in 18 U.S.C. § 1101(a)(43) and provide in relevant part that an
"aggravated felony" includes "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 ).
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In 1992, as the date for Baca-Valenzuela's release
from prison neared, the INS canceled its 1987 Order to
Show Cause and substituted a new Order to Show Cause
citing the enhanced penalties provided in the amended
Immigration and Nationality Act for aliens convicted of
an "aggravated felony." Then, upon his release from
prison in 1992, Baca-Valenzuela was detained by the INS
pending deportation. On October 14, 1992, an immigration
judge ordered Baca-Valenzuela deported pursuant to
Section 241(a)(2)(A)(iii) of the Immigration and
Nationality Act due to his status as an alien with a
prior conviction for an aggravated felony. 8 U.S.C.
§1251(a)(2)(A)(iii). Baca-Valenzuela did not file a
direct appeal of the deportation order and was then
deported.
In 1995, Baca-Valenzuela was arrested in Cooper
County, Missouri, and charged under Missouri state law
with possession of a controlled substance. On March 13,
1995, Baca-Valenzuela was convicted of that offense and
fined $5000.00. That same day, Missouri officials turned
him over to the custody of the INS.
On March 29, 1995, Baca-Valenzuela was indicted by a
federal grand jury in the Western District of Missouri on
one count of reentering the United States after having
been deported subsequent to an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a)(1)&(2) and (b)(2).7
7
Title 8 U.S.C. §§1326(a) and (b) provide:
(a) Subject to subsection (b) of this section, any alien who --
(1) has been arrested and deported or excluded and deported, and
thereafter
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Baca-Valenzuela moved to dismiss the indictment. He
raised several claims challenging the application of
the Immigration and Nationality Act, as amended, to his
(2) enters, attempts to enter, or is at any time found in, the United
States, unless (A) prior to his reembarkation at a place outside the
United States or his application for admission from foreign
contiguous territory, the Attorney General has expressly consented
to such alien's reapplying for admission; or (B) with respect to an
alien previously excluded and deported, unless such alien shall
establish that he was not required to obtain such advance consent
under this chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more than 2 years, or both.
(b) Notwithstanding subsection (a) of this section, in the case of any alien
described in such subsection --
(1) whose deportation was subsequent to a conviction for
commission or three or more misdemeanors involving drugs,
crimes against the person, or both, or a felony (other than an
aggravated felony), such alien shall be fined under Title 18,
imprisoned not more than 10 years, or both; or
(2) whose deportation was subsequent to a conviction for
commission of an aggravated felony, such alien shall be fined
under such Title, imprisoned not more than 20 years, or both.
8 U.S.C. §§ 1326 (a), (b) (1997) (emphasis supplied).
We have previously held that Section 1326(b) does not state the elements of a
separate crime but is rather a sentence enhancement provision setting forth greater
punishment for offenders violating Section 1326(a) who have previously been deported
subsequent to a conviction for a felony, subsection (b)(1), or an aggravated felony,
subsection (b)(2). United States v. Haggerty, 85 F.3d 403, 405-406 (8th Cir. 1996).
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conduct. The United States magistrate judge8 rejected all
challenges to the indictment. The district court adopted
the recommendations of the magistrate judge and overruled
the motion to dismiss the indictment. Baca-Valenzuela
then pleaded guilty but reserved the right to pursue his
legal challenges to the conviction and sentence on
appeal.
On this appeal, Baca-Valenzuela raises four related
challenges to his conviction and sentence for the illegal
reentry offense.9 First, Baca-Valenzuela contends that
both his 1992 deportation and his 1995 conviction are
invalid as a matter of statutory construction. He says
that when he committed the underlying drug offense in
1987 that crime was not an "aggravated felony" and by its
terms the 1990 statute did not intend retroactive
application of the enhanced penalties for aggravated
felonies. Second, appellant argues that, even assuming
the 1990 statute meant to include in the expanded
definition of "aggravated felony" crimes committed before
its enactment, the statute as applied to him violates
the ex post facto clause of the Constitution. Third,
appellant urges that the 16 level upward enhancement of
his sentence was invalid, because he was convicted only
of "aiding and abetting" the drug offense rather than
commission of the offense as a principal. Fourth,
appellant claims that he was entitled to a downward
8
The Honorable John T. Maughmer, Chief United States Magistrate Judge,
United States District Court for the Western District of Missouri.
9
Although Baca-Valenzuela's briefs label and order the issues somewhat
differently, we believe that the four claims identified here better subsume the actual
substance of the challenges set forth to his conviction and sentence both in the briefs
and at oral argument.
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departure in sentencing on grounds that the retroactive
application of the sentence enhancement for prior
conviction of an "aggravated felony" was not a factor the
Sentencing Commission had taken into account when
drafting the Sentencing Guidelines.
-13-
Analysis
Statutory Construction of the Aggravated Felony Provision
Baca-Valenzuela first contends that in drafting the
Immigration and Nationality Act Congress did not intend
to treat crimes committed before the 1988 and 1990
amendments as aggravated felonies for purposes of
enhanced punishment. He argues that his 1987 drug
offense was not an aggravated felony at the time of its
commission or his conviction because no such category of
offenses then existed. Further, Baca-Valenzuela
maintains that there is no evidence that Congress
intended retroactive application of the aggravated felony
provision. Accordingly, argues Baca-Valenzuela, his 1992
deportation and 1995 conviction and sentence were flawed
for being premised on a prior conviction which could not
be correctly categorized as an aggravated felony.
Because Baca-Valenzuela challenges a ruling on a
matter of law, i.e., the interpretation of a statute --
the Immigration and Nationality Act, as amended -- we
review the district court's decision de novo. United
States v. Crawford, No. 96-2808, slip op. at 18 (8th Cir.
June 23, 1997).
The baseline for interpreting a statute is always the
"language of the statute itself," United States v.
James, 478 U.S. 597, 604 (1986), for we "must give
effect to the unambiguously expressed intent of
Congress." Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984).
Baca-Valenzuela was convicted in 1987 of aiding and
abetting the possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), and 18
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U.S.C. § 2. This offense was a federal felony at the
time of conviction for which Baca-Valenzuela was
sentenced to ten years in prison. Baca-Valenzuela's 1995
sentence for illegal reentry was enhanced on the theory
that this 1987 conviction constituted "illicit
trafficking in [a] controlled substance, as defined in
Section 802 of Title 21," under the definition of
"aggravated felony" in 8 U.S.C. § 1101(a)(43) as it had
been expanded in 1990.
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The starting point, then, for statutory
interpretation in this case is the language of Section
501 of the 1990 amendment.10 In particular, Section
501(a)(2) provided that the definition of an aggravated
felony included "any illicit trafficking in any
10
SEC. 501. AGGRAVATED FELONY DEFINITION.
(a)IN GENERAL. -- Paragraph (43) of section 101(a) (8 U.S.C. 1101(a))
is amended --
(1) by aligning its left margin with the left margin of paragraph
(42),
(2) by inserting "any illicit trafficking in any controlled substance
(as defined in section 102 of the Controlled Substances Act),
including" after "murder,",
(3) by inserting after "such title," the following: "any offense
described in section 1956 of title 18, United States Code (relating
to laundering of monetary instruments), or any crime of violence
(as defined in section 16 of title 18, United States Code, not
including a purely political offense) for which the term of
imprisonment imposed (regardless of any suspension of such
imprisonment) is at least 5 years, ",
(4) by striking "committed within the United States",
(5) by adding at the end the following: "Such term applies to
offenses described in the previous sentence whether in violation of
Federal or State law.", and
(6) by inserting before the period of the sentence added by
paragraph (5) the following: "and also applies to offenses described
in the previous sentence in violation of foreign law for which the
term of imprisonment was completed within the previous 15
years".
(b) EFFECTIVE DATE. -- The amendments made by subsection (a) shall
apply to offenses committed on or after the date of the enactment of this
Act [November 29, 1990], except that the amendments made by
paragraphs (2) and (5) of subsection (a) shall be effective as if included
in the enactment of section 7342 of the Anti-Drug Abuse Act of 1988.
Pub. L. No. 100-649, § 501, 104 Stat. at 5048.
-16-
controlled substance." In addition, Congress stated in
Section 501(b) that for the new offenses added in 1990 to
the list of aggravated felonies in Section 501(a) --
money laundering
-17-
and crimes of violence -- only those committed after the
effective date of the 1990 Act could serve to enhance a
sentence for illegal reentry. However, Section 501(b)
specifically provided with respect to the drug offenses
in paragraph (a)(2) that the 1990 amendments were
"effective as if included in the enactment of section
7342 of the Anti-Drug Abuse Act of 1988."
Thus, Congress stated explicitly that a money
laundering offense or a crime of violence, for example,
could not be the basis for an aggravated felony sentence
enhancement unless committed on or after November 29,
1990. For drug offenses, however, Congress provided an
effective date only indirectly by treating them "as if"
they were included in the 1988 Act.
We must refer then to the language of the 1988 Act to
determine its effective date (and by extension whether
drug offenses committed before 1988 are aggravated
felonies). Congress did not specifically state in the
1988 Act whether crimes committed before its passage
could be counted as "aggravated felonies." Section 7342
of the 1988 Act defined "aggravated felony" as meaning
"murder, any drug trafficking crime . . . , or any
illicit trafficking in any firearms or destructive
devices . . . ." But Section 7342 did not specify when
such offenses must have occurred to constitute an
aggravated felony.
Despite the absence of an explicit effective date
provision in the "aggravated felony" definition, we
believe it is clear by necessary implication from the
language and design of the Act as a whole that Congress
intended to include drug convictions prior to 1988.
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First, the language of several substantive provisions
of the 1988 Act which make use of the term "aggravated
felony" would not make sense unless the term included
pre-enactment convictions. And, it is, of course,
axiomatic that we read the language of a statute so as to
give effect to each word enacted by Congress. Pelofsky
v. Wallace, 102 F.3d 350, 353 (8th Cir. 1996).
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For example, we note that the 1988 Act provided that
the enhanced penalties in 8 U.S.C. § 1326 for persons
convicted of illegal reentry after deportation subsequent
to an aggravated felony should "apply to any alien who
enters, attempts to enter, or is found in, the United
States on or after the date of the enactment of this
Act." Pub. L. No. 100-690, § 7345(b), 102 Stat. at
4471. Because the enhanced penalties applied immediately
on the date of enactment [November 18, 1988] to any alien
who attempted to enter the United States (without consent
after deportation subsequent to conviction for an
aggravated felony), it seems clear that the aggravated
felonies referred to must include those occurring before
November 18, 1988. It would have been impossible for an
alien entering, attempting to enter, or being found in
the United States on that date to have a prior conviction
for an aggravated felony if such aggravated felonies
included only offenses committed after that date. Thus,
the only interpretation of the definition of aggravated
felony, 8 U.S.C. § 1101(a)(43), which would also give
meaningful effect to this substantive provision employing
the term, 8 U.S.C. § 1326(b), is that "aggravated
felony" included pre-enactment convictions.11
11
At least two other provisions of the 1988 Act make clear Congress' intent that
the definition of "aggravated felony" should apply to pre-enactment convictions.
Section 7346 set forth criminal penalties for those who aid or assist aliens (previously
convicted of an aggravated felony and deported) in entering or remaining in the United
States. Section 7346 specifically provided that it would apply "to any aid or assistance
which occurs on or after the date of the enactment of this Act." Pub. L. No. 100-690,
§ 7346, 102 Stat. at 4471 (1988). As with Section 7345, it would make little sense for
this substantive liability provision to apply immediately upon enactment unless the
aggravated felonies to which it referred included those occurring before enactment.
Similarly, Section 7349 provided a 10 year ban on reentry into the United States of
aliens convicted of an aggravated felony. Congress expressly stated that this provision
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Second, in several of the other substantive sections
of the 1988 Act which used
"shall apply to any alien convicted of an aggravated felony who seeks admission to the
United States on or after the date of the enactment of this Act." Pub. L. No. 100-690,
§ 7349, 102 Stat. at 4473(1988).
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the term "aggravated felony" Congress explicitly limited
the statute's application to aliens convicted of
aggravated felonies "on or after the date of the
enactment." Such provisions indicate that Congress knew
how -- when it chose -- to restrict the disabilities
arising from conviction of "aggravated felonies" to
prospective crimes
only. Moreover, such express limitation to future
offenses would have been unnecessary and redundant if the
definition of "aggravated felony" did not already include
convictions prior to the effective date of the Act.
For example, Section 7343 of the 1988 Act provided
that an alien convicted of an "aggravated felony" would
be immediately deportable. However, Section 7343 also
stated that it applied only to an "alien who has been
convicted, on or after the date of the enactment of this
Act, of an aggravated felony." If, as Baca-Valenzuela
contends, the term aggravated felony as defined in 8
U.S.C. § 1101(a)(43) was meant by Congress to be
restricted to post-enactment crimes, then that portion of
Section 7343 making aliens subject to deportation only
for prospective offenses would be redundant.12
Thus, it seems clear from the language of the 1988
Act and its design that "aggravated felony" as defined
included crimes for which an alien was convicted prior to
November 18, 1988. This is the only interpretation of
12
In two other sections of the 1988 Act a substantive provision regarding the
deportation of aliens who commit an aggravated felony is explicitly limited to
prospective crimes only. See §§ 7344(b) ("Grounds of Deportation") & 7347(c)
("Expedited Deportation Proceedings for Aliens Convicted of Aggravated Felonies").
Pub. L. No. 100-690, §§ 7344(b) & 7347(c), 102 Stat. at 4471, 4472(1988).
-22-
the statutory language which will both give effect to all
the words Congress chose and recognize Congress'
decisions to place temporal limitations on the
effectiveness of some substantive provisions using the
term "aggravated felony" but not others.
This reading of the statute is consistent with that
of the other Courts of Appeals which have faced this
issue. For example, in United States v. Aranda-
Hernandez, 95
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F.3d 977, 981-83 (10th Cir. 1996), cert. denied, 117 S.
Ct. 1314 (1997), an alien -- deported after conviction of
a drug offense in 1984 -- was rearrested in 1994 and
charged with illegal reentry after deportation subsequent
to conviction of an aggravated felony. He argued that
under the effective dates of the 1988 and 1990
amendments to the Immigration and Nationality Act his
1984 conviction could not be an aggravated felony. The
Tenth Circuit disagreed and held that the aggravated
felony enhancement in Section 1326(b) applied to all
covered drug offenses, regardless of the date committed.
Similarly, in United States v. Adkins, 102 F.3d 111
(4th Cir. 1996), the Fourth Circuit upheld a conviction
for reentry after deportation subsequent to an aggravated
felony where the underlying drug offense occurred in
January 1988, prior to the enactment of the 1988 and 1990
amendments. Accord, United States v. Troncoso, 23 F.3d
612 (4th Cir. 1994) (Section 1326(b) conviction based on
January 1988 drug conviction affirmed), cert. denied, 513
U.S. 1116 (1995). See also Scheidemann v. INS, 83 F.3d
1517 (3d Cir. 1996) (crimes are aggravated felonies for
purposes of 8 U.S.C. § 1182(c) waiver of deportation
"regardless of the conviction date").
Our conclusion that Baca-Valenzuela's 1987 conviction constitutes an aggravated
felony for purposes of Section 1326(b) is also consistent with the interpretation of the
Act by the Board of Immigration Appeals, the division of the Justice Department with
technical expertise in interpretation of the immigration laws. In Matter of A-A-, 20 I.
& N. Dec. 492 (1992), for example, the Board held that an alien's request for
discretionary waiver of inadmissibility under 8 U.S.C. § 1182(c) must be denied
because such relief was barred for all aggravated felonies. The Board held that the
definition of aggravated felony attached retroactively to all convictions described in 8
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U.S.C. § 1101(a)(43) "whether occurring before, on, or after November 18, 1988."
We believe that the recent decision by the Ninth Circuit in United States v.
Gomez-Rodriquez, 96 F.3d 1262 (9th Cir. 1996), is not to the contrary. In Gomez-
Rodriquez a unanimous court sitting en banc held that an alien's indictment for illegal
-25-
reentry after deportation subsequent to conviction for an aggravated felony must be
dismissed where the underlying felony was a crime of violence -- assault with a deadly
weapon -- which occurred before the definition of aggravated felony was expanded to
include such crimes.13 The court relied explicitly on the language of the 1990
amendment restricting the definition of aggravated felony to "offenses committed on
or after the date of the enactment" of the 1990 Act for those new crimes (such as
crimes of violence) added in 1990. 96 F.3d at 1264. We believe the necessary
implication of the Ninth Circuit's reasoning is that for those other crimes included in the
definition of aggravated felony (such as drug crimes), for which the 1990 Act provides
no explicit limitation to prospective offenses only, the Act includes such offenses,
whenever committed.
In sum, we conclude that based on the language of the
Immigration and Nationality Act, as amended in 1988 and
1990, Congress intended Baca-Valenzuela's 1987 drug
conviction to be treated as an aggravated felony for
purposes of enhanced punishment under Section 1326(b).14
13
But cf. United States v. Campbell, 94 F.3d 125 (4th Cir. 1996), cert. denied,
1997 WL 274271 (1997), where the Fourth Circuit explicitly disagreed with the Ninth
Circuit and held that an enhanced sentence for illegal reentry applied where the
underlying aggravated felony was manslaughter (i.e., a crime of violence) committed
prior to the effective date of the 1990 Act.
14
Having concluded that the substance of the claims Baca-Valenzuela raises in
his attack on his 1995 conviction and sentence are without merit, we also affirm the
district court's decision that the appellant has failed to satisfy the required threshold to
raise the same claims in a collateral attack on the 1992 deportation order. See United
States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995) ("In a section 1326
prosecution, the defendant may collaterally attack the underlying deportation
proceedings and prevent the government from using them as a basis for conviction if
(1) an error in the deportation proceedings rendered the proceedings fundamentally
unfair in violation of due process, and (2) the error functionally deprived the alien of
the right to judicial review.") (citing United States v. Mendoza-Lopez, 481 U.S. 828,
840 (1987)). Baca-Valenzuela cannot establish fundamental unfairness because he was
-26-
clearly deportable for his prior conviction of a felony even if his offense did not
constitute an aggravated felony. Moreover, he has not established that the error, if any,
had the effect of depriving him of judicial review of the deportation order. Rather, it
appears, that Baca-Valenzuela was informed of his right to appeal the deportation order
but declined to pursue an appeal.
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Ex Post Facto
Next Baca-Valenzuela contends that if the statute
does apply to his conduct it constitutes an invalid ex
post facto law.
Article I, Section 9, of the Constitution provides that "No Bill of Attainder or ex
post facto Law shall be passed." The Supreme Court has stated that the ex post facto
clause bars laws that "retroactively alter the definition of crime or increase the
punishment for criminal acts." California Dep't of Corrections v. Morales, 115 S. Ct.
1597, 1601 (1995). And, we have held that an ex post facto law is one that either
makes criminal conduct that was legal when done or inflicts greater punishment for an
offense than the law when the offense was committed. United States v. Crawford, No.
96-2808, slip op. at 12.
Baca-Valenzuela's ex post facto claim is based on the
argument that he is being punished for 1987 conduct,
under laws effective in 1988 and 1990. This contention
rests on a misinterpretation of Section 1326. Our
court -- as well as numerous other courts that have
addressed the issue -- has indicated that the punishments
set forth in Section 1326 are for the offense of
reentry (after deportation and without consent from the
Attorney General) not for the underlying criminal
offense. United States v. Haggerty, 85 F.3d at 404-05.
See also United States v. Saenz-Forero, 27 F.3d 1016,
1020 (5th Cir. 1994); United States v. Arzate-Numez, 18
F.3d 730, 735 (9th Cir. 1994). Accordingly, Baca-
Valenzuela was punished for his recent illegal reentry
of the United States -- sometime between his
deportation in 1992 and his arrest in Missouri in 1995 --
well after the Immigration Act was amended -- and not for
his 1987 drug offense.
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Because Section 1326(b) is merely a sentence
enhancement provision providing for greater punishment
for certain offenders committing the instant offense --
reentering or being found in the United States after
deportation subsequent to an aggravated felony -- it
plainly is not an ex post facto law. As we have said,
"[s]o long as the actual crime for which a defendant is
being sentenced occurred after the effective date of the
new statute, there is no ex post facto violation."
United States v. Farmer, 73 F.3d 836, 841 (8th Cir. 1996)
(quoting United States v. Allen, 886 F.2d 143, 146 (8th
Cir. 1989)), cert. denied, 116 S. Ct. 2570 (1996).
Despite these clear principles, Baca-Valenzuela
argues here that Section 1326(b) is an ex post facto law
under the reasoning of United States v. Davis, 936 F.2d
352 (8th Cir. 1991), cert. denied, 503 U.S. 908 (1992).
This argument is misplaced. In Davis the defendant was
convicted of a felony. Later a new statute was passed
barring felons from carrying firearms for ten years after
their release from prison. The question was whether this
new bar on firearms possession constituted an ex post
facto law as applied to a person convicted of a felony
prior to the enactment of the firearms statute. We
concluded it was a forbidden ex post facto law, because,
as applied, the new statute plainly increased the
punishment for a past offense.
That is not the case here. Like other recidivist and
career offender provisions in current law, Section
1326(b) imposed on Baca-Valenzuela a greater punishment
because he had previously been convicted and deported.
However, there is no doubt here that the crime Baca-
Valenzuela was punished for was his illegal reentry and
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residence in the United States in 1992-1995 and not his
drug activities in 1987. Section 1326(b) as applied to
Baca-Valenzuela is not an ex post facto law.
16 Base Offense Level Sentence Enhancement
Baca-Valenzuela also challenges his sentence on
grounds that he should not have received the 16 level
offense enhancement for an "aggravated felony" because he
was convicted of "aiding and abetting" cocaine possession
rather than commission of the crime as a principal.
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Section 2L1.2 of the Sentencing Guidelines provides
that persons convicted of illegal reentry into the United
States shall receive a base offense level of 8. Then
subsection (b) provides that if the defendant was
previously deported after conviction for an aggravated
felony his base offense level should be increased by 16
levels. Accordingly, in calculating Baca-Valenzuela's
sentence the magistrate judge started with a base offense
level of 8, added 16 for the prior conviction of an
aggravated felony, and deducted 3 for acceptance of
responsibility for a total offense level of 21. With
Baca-Valenzuela's criminal history category of III, that
offense level corresponded to a sentence of 46-57 months
and Baca-Valenzuela was sentenced to 51 months in prison.
Baca-Valenzuela contended in the district court that
the 16 level enhancement for prior conviction of an
aggravated felony was in error, because the crime of
which he was convicted -- "aiding and abetting" the
possession of cocaine with intent to distribute -- is not
specifically listed as an aggravated felony in either the
statute, 8 U.S.C. § 1101(a)(43), or the applicable
guideline, U.S.S.G. § 2L1.2(b)(2). The district court,
however, rejected this argument finding that under well-
established principles of federal criminal law conviction
of aiding and abetting an offense is the same as
conviction of the offense as a principal.
We agree with the reasoning of the district court.
A fundamental theory of American criminal law is that
there is no offense of aiding and abetting or accomplice
liability as such. Instead, accomplice liability is
merely a means of determining which persons were closely
enough related to the underlying offense to be prosecuted
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and convicted of that offense. Whether one is convicted
as a principal or as an accomplice/aider and abettor, the
crime of which he is guilty is the same: whatever is the
underlying offense. United States v. Simpson, 979 F.2d
1282, 1285 (8th Cir. 1992) (Magill, J.), cert. denied,
507 U.S. 943 (1993).
Here, Baca-Valenzuela's role in the 1987 drug offense
was apparently such that the prosecutor chose to charge
him with possession of cocaine with intent to distribute,
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21 U.S.C. § 841(a)(1), as an aider and abettor under 18
U.S.C. § 2. Although convicted on a theory of accomplice
liability, Baca-Valenzuela was nevertheless convicted and
punished for the cocaine offense -- the same as if he had
been the principal or only party involved in the conduct.
Simpson, 979 F.2d at 1286. He properly received enhanced
punishment based on this prior conviction. See United
States v. Mitchell, 23 F.3d 1, 2-3 (1st Cir. 1994)
(aiding and abetting a crime of violence is the same as
commission of the crime as a principal for purposes of
enhanced sentence). Simpson, 979 F.2d at 1285 (same).
The one case cited by Baca-Valenzuela as supporting
his claim -- that Congress did not intend to include
aiding and abetting as an aggravated felony -- is United
States v. Mendoza-Figueroa, 28 F.3d 766 (8th Cir. 1994).
In that case a panel of this court held that where the
operative statute and sentencing guideline did not
specifically include conspiracy as a basis for an
enhanced punishment, Congress did not intend to cover
conspiracies. The panel rejected the government's
argument that the statutory language listing substantive
drug offenses should be read as implicitly including
conspiracy as well. However, the panel opinion was
vacated and the court en banc held that conspiracy to
distribute marijuana was a controlled substance offense
for purposes of enhanced punishment. Unitied States v.
Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995). In any
event, Mendoza-Figueroa does not support the further
proposition that such a statute should not be read to
include aiding and abetting. Unlike accomplice
liability, conspiracy is plainly a separate criminal
offense; a person is guilty of the crime of conspiracy
not of the underlying offense as a conspirator. See,
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e.g., United States v. Martin, 867 F.2d 476 (8th Cir.
1989).
Accordingly, the district court correctly concluded
that Baca-Valenzuela had been convicted of a crime
involving "illicit trafficking in any controlled
substance (as defined in 21 U.S.C. § 802)" under
Sentencing Guideline Section 2L1.2. This crime is within
the definition of aggravated felony in both the statute
and the sentencing guideline and thus Baca-Valenzuela
properly received an enhanced sentence based on his prior
commission of the aggravated felony.
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Downward Departure
Finally, Baca-Valenzuela contends that the district
court erred in denying his request for a downward
departure in his sentence. Baca-Valenzuela's theory was
that in drafting the Sentencing Guidelines the Sentencing
Commission did not anticipate that the sentence
enhancement for an "aggravated felony" would be
interpreted to include crimes committed before the
sentence enhancement became law. Thus, he argued, a
downward departure was required to avoid both unintended
consequences and injustice. This argument is misplaced.
A district court may depart from a guidelines
sentence if the court "finds that there exists an
aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that
should result in a sentence different from that
described." 18 U.S.C. § 3552(b). According to the
Supreme Court's recent decision in Koon v. United States,
116 S. Ct. 2035, 2046 (1996), the issue is whether
"certain aspects of the case [are] unusual enough for it
to fall outside he heartland of cases in the
Guideline[s]."
As we have recently held, "[w]hen a district court
correctly understands that it has the authority to depart
on a particular basis from the guidelines, the 'court's
discretionary decision not to depart . . . is
unreviewable on appeal absent an unconstitutional
motive.'" United States v. Hernandez-Reyes, No. 96-3548,
slip op. at 3 (8th Cir. June 11, 1997), quoting, United
States v. Field, No. 96-1590, slip op. at 9 (8th Cir.
April 7, 1997). Baca-Valenzuela has certainly shown no
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motive for the district court's rejection of his request
for downward departure other than that his request was
without legal merit.
Here, we do not believe that Baca-Valenzuela's
substantive argument -- that the Sentencing Commission
did not adequately take into account how the aggravated
felony enhancement might be applied to a case like this
-- has merit. But, in any event, it is clear that the
district court fully understood the argument Baca-
Valenzuela was
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making and rejected it.15 In such circumstances, we
decline to upset the well-reasoned decision of the
sentencing judge.
Accordingly, for the reasons stated herein, the
judgment of the district court is in all respects
affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT
15
The court rejected Baca-Valenzuela's request for a downward departure,
saying:
I see no basis for a request for a downward departure because it is clear
to me that the Sentencing Commission contemplated the term aggravated
felony and included it in its penalty structure for unlawfully entering or
remaining in the United States, and that for the reasons that we've been
discussing, the definition of aggravated felony, whether in the guidelines
or in the statute, does not unfairly or unlawfully add to the penalty for past
offenses.
It affects only the penalty for the current offense, and so I don't see any
basis -- I mean, I think to give this defendant a downward departure
because the offense that is determined to be an aggravated felony
occurred in the past really makes no sense. It doesn't, the Sentencing
Commission clearly contemplated that, as did Congress.
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