USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 93-1116
UNITED STATES OF AMERICA,
Appellee,
v.
OMAR MARTIN ZAPATA, a/k/a OMAR MARTIN ZAPATA-MEDINA,
a/k/a OMAR ZAPATA MARTIN,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
_________________________
Before
Breyer, Chief Judge,
___________
Selya and Boudin, Circuit Judges.
______________
_________________________
Lenore Glaser on brief for appellant.
_____________

A. John Pappalardo, United States Attorney, and Jeanne M.

___________________
_________
Kempthorne, Assistant United States Attorney, on brief for
__________
appellee.
_________________________
July 19, 1993
_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

In

this

criminal

appeal,

defendant-appellant Omar Martin Zapata-Medina (Zapata), an alien,

claims

that the

calculating
his

case.

court below

impermissibly "double

the guideline sentencing

Concluding

that

range (GSR)

Zapata's

sentence

counted" in

applicable to
was

lawfully

constituted, we affirm.
I
I
The

facts relevant

to this

The government deported Zapata

on a state drug-trafficking

appeal are

not disputed.

in 1990, following his conviction

charge for which he served

142 days

in

prison (the remainder of

suspended).

Under

his term of

applicable

federal

immurement having been

law,

Zapata's

conviction is classified as an aggravated felony.

1101(a)(43).
the

The deportation did not stick:

United States sub rosa

___ ____

guilty

to a

charge that he

in 1992.

prior

See 8 U.S.C.
___

Zapata returned to

Once apprehended, he pled

had violated

8 U.S.C.

1326(a) &

(b)(2).1
At sentencing,
offense level
directed

by

the district

court calculated Zapata's

and criminal history category (CHC)

the

federal

sentencing guidelines.2

in the manner
The

court

____________________

1These subsections stipulate in the aggregate that any

"alien who . . . has been arrested and deported . . ., and
thereafter . . . is . . . found in . . . the United States
[without the express consent of the Attorney General, and] . . .
whose deportation was subsequent to a conviction for commission
of an aggravated felony, . . . shall be [punished as provided]."

2As a matter of general interest, we note that Zapata was

sentenced on December 1, 1992; hence, the November, 1992 version
of the guidelines applied. See United States v. Harotunian, 920
___ _____________
__________
F.2d 1040, 1041-42 (1st Cir. 1990) (directing that, except where
2

started

with a

base

offense level

of

eight, see
___

U.S.S.G.

2L1.2(a),

increased

the

offense

U.S.S.G.

2L1.2(b)(2) (directing

defendant who has entered

deportation "after
subtracted three
U.S.S.G.

level

to

twenty-four,

see
___

a sixteen-level increase for a

the United States unlawfully following

a conviction for an
levels for

3E1.1, thereby

aggravated felony"), and

acceptance

of responsibility,

reaching an adjusted offense

see
___

level of

twenty-one.
The district
at the heart
criminal
of

court's calculation of

of this appeal.

Under

Zapata's CHC lies

U.S.S.G.

4A1.1(b),

two

history points are to be added "for each prior sentence

imprisonment" of

sentence"

means

sixty
"any

days

or

more.

sentence

The

previously

term
imposed

"prior

upon

adjudication of guilt, whether by guilty plea [or otherwise], for

conduct

not

4A1.2(a)(1).
two

part

of

the

instant

The district court invoked

points to Zapata's criminal

prior

narcotics

conviction
level).

conviction

had already

The

offense."

been

U.S.S.G.

this provision, adding

history score by

(notwithstanding
used

to

two criminal history points

reason of the

that

ratchet up

the
his

prior

offense

boosted appellant over

the line into CHC II and upped the GSR to 41-51 months.
After the district

court sentenced appellant to forty-

____________________
necessary to

avoid ex post facto problems, "a defendant is to be

__ ____ _____
punished in
accordance with the guidelines
in effect at
sentencing"). Although the district court signalled an intention
to use the November, 1991 version of the guidelines, this appears
to have been a slip of the tongue. Because the district court's
calculations faithfully track the November, 1992 version, we

disregard the lapsus linguae.

______ _______
3

one months in
error solely

prison, this appeal arose.

to the

double counting

In it, Zapata assigns

of his

original narcotics

conviction.
II
II
In
phenomenon

the

sentencing

that is

practice is often
point:
did

less sinister

into forbidden

interpretive

comment, which states

2L1.2(b)
added for

for

the

such

prior felony

conviction in

U.S.S.G.

As a general rule,
written,

name implies.

The

the

court engaged

Rather, the

Sentencing

court's

Commission's

specifically that an offense

"applies in addition to any

________________

History)."

as

tracked

is

This case illustrates

territory.

carefully

increase

counting

counting in which the district

methodology

level

double

than the

perfectly proper.

the double

not stray

context,

Chapter

conviction

under

section

criminal history
Four, Part

points

(Criminal

2L1.2, comment. (n.5) (emphasis supplied).

courts should strive to apply

giving full

force

and

effect

the guidelines

to the

Sentencing

Commission's interpretive commentary and application notes.

Stinson
_______

v. United States, 113

_____________

S. Ct. 1913,

See
___

1915 (1993); United

______

States v. Jones, ___ F.2d ___, ___ (1st Cir. 1993)

______
_____

[No. 93-1189,

slip op. at 6]; see also United States v. Williams, 954 F.2d 204,
___ ____ _____________
________
206

(4th Cir. 1992) (approving double counting on the basis that

the

sentencing

guidelines

Although

there are

Stinson,
_______

113 S. Ct. at

disregarded

if

must

exceptions to

"it

be

"applied

as

written").

the general rule,

see, e.g.,
___ ____

1915 (explaining that

violates

the

commentary may be

Constitution

or

federal

statute, or is inconsistent with, or a plainly erroneous

reading

of,

[a] guideline"); United States v. Fiore,

_____________
_____

983 F.2d 1, 2 (1st

Cir. 1992) (stating that courts "should defer to the Commission's

suggested interpretation
Commission's
with the

position

of

a guideline

is arbitrary,

guideline's text, or

provision

unless

the

unreasonable, inconsistent

contrary to law"),

cert. denied,
_____ ______

113

S.

Ct.

instance.

1830 (1993),

no

such

To the contrary, note

with constitutional

exception

applies in

this

5 strikes us as fully consonant

understandings, relevant statutory

law, and

the text of the applicable guideline provisions.

Furthermore, the case law offers
for

the

district

circumstances

court's

at hand.

use

of

double

in

prior felony

conviction to

be used

in a Title 8

The

for this

found support

The

the Sentencing Commission intended

offense level and the CHC

court

the

Circuit flatly rejected

challenge virtually identical to that mounted by Zapata.3

Adeleke court determined that

_______
a

counting

Indeed, in United States v. Adeleke, 968

_____________
_______

F.2d 1159 (11th Cir. 1992), the Eleventh

a

a ringing endorsement

Commission's interpretive commentary

in calculating
case.

both the

See id. at
___ ___

1161.

not only

in the

conclusion
but also in

the sentencing

____________________

3Adeleke involved an alien found in the United States after

_______
he had been deported following an earlier conviction for a
garden-variety "felony."
See 8 U.S.C.
1326(b)(1).
In
___
contrast, the case before us involves 8 U.S.C.
1326(b)(2),
which pertains to an alien convicted of an "aggravated felony"
prior to deportation.
Because the only material difference
concerns the seriousness of the prior felony conviction, we think
that "(b)(1)" cases, like Adeleke, are relevant authority when a
_______
court ponders the permissibility of double counting in a "(b)(2)"
case.
5

calculus itself.
the

In

this respect, the

court viewed the use

same conviction

for "conceptually

separate notions"

sentencing

to

be

permissible,

explaining

that

the

of

about

criminal

history adjustment is "designed to punish likely recidivists more

severely, while the [offense level] enhancement . . . is designed

to deter

aliens who have

been convicted

entering the United States."

In

United States
_____________

of a

felony from

re-

Id. (citation omitted).

___
v. Campbell, 967 F.2d
________

20, 22-23 (2d

Cir. 1992), a case involving an alien convicted under the statute

at issue

here but

sentenced

pursuant to

an earlier,

somewhat

different version of the

guidelines, the Second Circuit employed

sustain the

similar rationale

conviction.

The

to

district

court

two-fold
double

use of

counted

prior

previous

aggravated felony conviction in calculating the offense level and

CHC,

respectively, for

reentered the
affirmed,
used

United States.

noting that,

twice in

usages measured

alien who,
Id.
___

like Zapata,

at 23.

although the

constructing

The

court of appeals

on one

unlawful entry

had been

sentence, the

two

occasion, the offense

the Sentencing Commission's

wrongfulness of the

unlawfully

prior conviction

the defendant's

different things:

level, which represents

to the

an

under the

judgment as

attendant

circumstances;

and

estimates

likelihood

the

on

the

second
of

occasion,

the

recidivism with

respect

particular alien who achieves the illegal reentry.

Adeleke
_______
adopted by

and

Campbell
________

this court in

mirror

the

United States v.
_____________

CHC,

which
to

the

Id. at 24-25.
___

analytic

approach

Sanders, 982 F.2d

_______

(1st Cir. 1992), cert.

_____

denied, 61 U.S.L.W. 3818 (1993).

______

we found double counting to

There,

be permissible because the guideline

in question plainly directed the court to use a single factor

conviction for carrying a firearm in the course of a drug crime

in two different ways:

first,

to calculate the offense level of

an armed career criminal, and second, to calculate the criminal's

CHC.

See id. at 6.
___ ___

We see no reason to retreat from these principles or to

skirt

their

delegated

application in

to

determining (1)
and

deterring

the

the

Sentencing

instant

case.

Commission

the

which factors should be

criminals,

and

(2)

the

Congress
twin

has

tasks

of

considered in punishing
methodology

by

which

punishment-related and deterrence-related factors should be taken

into account in constructing a
States
______

particular sentence.

See
___

United
______

v. La Guardia, 902 F.2d 1010, 1015 (1st Cir. 1990).

__________

carefully calibrated scheme aimed

that will differ

at producing sentencing ranges

depending upon

the existence and

nature of

prior felony conviction, section 2L1.2 expresses two things:

the Commission's determination that the incidence and
of

prior felony

sentencing
reentered
decision

conviction should

special

the United
that

punishment and

class

of

States, and

the methodology

In a

be

aliens

weighed by
who

(2) the

best

have

(1)

attributes

courts in

unlawfully

Commission's related

suited

to achieving

both

deterrence is to consider the relevant aspects of

such a conviction in

calculating not only the offense

level but

also the CHC.4

We

have

said

enough

on

this

score.

Since

the

sentencing scheme that the Commission has devised for the offense
of conviction is plausible

as a whole and not

inconsistent with

statutory law

or constitutional precepts,

our judgment for that of the Commission.

that we can second-guess
that the
an

felony

This

is

substitute

means, of course,

neither the Commission's

offense of unlawful reentry

aggravated

we cannot

determination

subsequent to perpetrating

sufficiently more

serious

than

commission of the same offense while toting less weighty

and,

thus,

warrants

greater

punishment,

nor

its

the

baggage

allied

determination that an alien who, having been deported following a

conviction

for

willingness

an aggravated

to flout our

laws again

without permission, may be

than

an

alien

criminal record
deserves a
e.g.,
____
to

felony,

with

having exhibited

by reentering

reenters

less

sentence possessing

sullied

this

crimes

country with

record,

the country

more likely to commit serious

who unlawfully
or

and

no

and,

thus,

greater deterrent impact.

Cf.,
___

id. at 1015 (explaining that, since the Commission is free

___

determine the

defendant

extent to

which substantial

should warrant a downward departure

assistance by

and to fashion an

____________________

4U.S.S.G.
2L1.2(a) establishes a base offense level of 8
for aliens unlawfully entering the United States.
The guideline
provides a four-level increase for aliens previously deported
after conviction for a non-immigration-related, non-aggravated
felony, id. at
2L1.2(b)(1), and a sixteen-level increase if the
___
previous conviction was for an aggravated felony. See id. at
___ ___
2L1.2(b)(2). Other aspects of the sentencing scheme, such as how
it treats misdemeanors, see id., comment. (n.1), are not germane
___ ___
for present purposes and, therefore, need not be discussed.
8

implementing methodology, it
the

is not for

wisdom of rational choices

the courts to

made by the

question

Commission in these

respects).
We hold,

therefore, that to the extent the same factor

reflects both the seriousness of an offense and the likelihood of

a particular
in

defendant's recidivism, it may

sentencing

deterrence

for
so

the

separate purposes

long as

the Commission,

implication, so directs.
665,

672-75 (1st

permissible in a

Cir.

1992)

(holding

situation where it was

"carefully

of

punishment and

expressly or

by fair

Cf. United States v. Newman,

___ _____________
______

the applicable guideline and

Commission's

be considered twice

982 F.2d

double counting

below falls

be

expressly authorized by

helped to effectuate the Sentencing

calibrated

offense

level

adjustment

scheme"), petition for cert. filed (U.S. Apr. 22, 1993).

________________________
the ruling

to

squarely within

this

Because

ambit, we

reject

appellant's claim of error.

III
III
Appellant has another string to his bow.
States

v.

Campos-Martinez, 976

F.2d

589 (9th

Citing United
______
Cir.

1992), he

______

_______________

asseverates

that,

element of the
conflicts

because his

crime to

prior

felony

which he pled

with what he terms

conviction is

guilty, double

a "clear policy

an

counting

of the Sentencing

Commission to avoid double counting when the specific behavior is

an

element

of

sentenced."
argument

the

crime

for

Appellant's

which

Brief at

the

6.

defendant

will

Appellant bases

on the combined force of three items:

be

this

(1) the language

of

U.S.S.G.

4A1.2(a)(1)

(defining a

"prior

sentence"

for

purposes of computing a defendant's criminal history score as any

sentence "for conduct not
introductory

comment to

part of the instant offense");

Chapter 3,

guidelines (discussing

the need

multiple

for

punishment

conduct");
instances

and (3)

Part D,

of

the sentencing

for grouping rules

substantially

a multifaceted

"to prevent

identical

analogy to

(2) an

offense

several specific

in which the Commission, having employed an element of

the offense in fixing the base offense level, thereafter chose to

eschew
comment.

any double
(n.2)

counting.

(discussing

See,
___

e.g., U.S.S.G.
____

vulnerability

of

victim),

3A1.1,

3A1.3,

comment.

(n.2)

(discussing

(discussing

abuse

of

restraint

special

trust),

(discussing obstruction

of justice);

Plaza-Garcia,
____________

345 (1st

914 F.2d

of

victim),

3C1.1,

3B1.3

comment.

(n.6)

see also United States v.

___ ____ ______________

Cir. 1990) (applying

3A1.1,

comment. (n.2)).
Placing three legs under

the asseverational stool does

not render it capable of bearing the load that appellant rests on

it.

The first two arguments can be considered in tandem.

government points
and

the caveat

out, both
to the

the definition of

grouping rules

"prior sentence"

focus on the

punishing a defendant twice for the same conduct.

____________________
the

concern

expressed

introductory comment
count

indictments

defendant's

guilt

by

the

Sentencing

to Chapter 3,
a

on several

counts

where,
may

problem of

By like token,

Commission

Part D applies

situation

As the

in

the

to multiple-

prototypically,
flow

from the

same

10

underlying

conduct.

different set

The

case

of circumstances.

at

bar presents

Although Zapata's

materially

prior drug-

trafficking

conviction may

stated by 8 U.S.C.

well

be an

element of

the offense

1326(b)(2),5 the conduct which

resulted in

that conviction is clearly separate and distinct from the conduct

at issue here.

In other words, section 1326(b)(2) does not focus

on appellant's earlier behavior,

________
previously

convicted

felon.

undermines appellant's
and

on

but on appellant's status

______
This

reliance both

the introductory

distinction
on U.S.S.G.

comment to

the

as a

completely

4A2.1(a)(1)

grouping rules.

Cf.
___

United States v. Alessandroni, 982 F.2d 419, 421, 422 (10th Cir.
______________
____________
1992)

(upholding,

4A1.2(a)(1),

the

against a
district

burglary conviction

similar
court's

in calculating

challenge

premised on

consideration
both the base

of

prior

offense level

and the CHC applicable to a pending felon-in-possession count).

The third
instances

appellant

leg of
cites

the stool
as

is no

examples

more sturdy.
of

the

The

Sentencing

Commission's policy against double counting simply do not support

the

suggested analogy.

Those instances,

like our

decision in

Plaza-Garcia, 914 F.2d at 347, do no more than illustrate

____________
given

factor

is not

to be

defendant's offense level.

considered
See,
___

twice in

e.g., Jones, ___

____ _____

that a

calculating a
F.2d at

___

____________________

5At least one district court has concluded that 8 U.S.C.

1326(a) and (b)(2) describe separate and distinct offenses so
that the government "must allege, as an element of a violation of
1326(b)(2), the existence of a defendant's prior aggravated
felony conviction."
United States v. Vieira-Candelario, 811 F.
_____________
_________________

Supp. 762, 768 (D.R.I. 1993).

We take no view of this issue.

11

[slip op.

at 5-6]

(distinguishing Plaza-Garcia on
____________

For purposes of this

case, we accept the

premise that a

factor cannot be double counted in setting a

level.

But, such instances

examining

the

both

the

calculation of

calculation
Part

of his CHC.

defendant's offense

of

whether

a single

factor

may be considered in connection

a

defendant's offense

As we previously

level

with

and the

indicated, see supra

___ _____

II, we believe that where the guidelines so provide, either

expressly
double

or

by fair

duty

in that

(holding

that the

counting

in certain

double counting
941

single

are not particularly instructive in

different question

(here, a prior conviction)

this basis).

F.2d 114,

defendant's
level and CHC

implication,
fashion.

117

See Newman,
___ ______

Commission's
instances

in other

a single

factor
982

F.2d

at 673

of

double

intent to

permit

express prohibition
indicates its

instances); United States

_____________

(2d Cir.

prior conviction

1991)
in

may serve

v. Blakney,
_______

(allowing consideration

connection

with both

calculations where the guidelines did

of

offense

not provide

to the

contrary and the

general purposes underlying

each usage

differed).
IV
IV
We
question,

need go no further.

is,

without serious

that double counting of the type employed here

a single factor to influence

and CHC

We conclude,

is permissible.

moreover,

guidelines.

faithful

using

both the defendant's offense

level

The double counting done in this case

to

the

tenor

and

purport

of

the

It follows that the lower court sentenced appellant

12

in

a lawful manner.

affirmed.

Affirmed.
Affirmed.
________

The judgment below is, therefore, summarily

See 1st Cir. Loc. R. 27.1.

___

13