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United States v. Castillo Moronta, 1st Cir. (1994)
United States v. Castillo Moronta, 1st Cir. (1994)
No. 93-2148
UNITED STATES,
Appellee,
v.
JOSE CASTILLO-MORONTA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________
____________________
David A. Cooper and Cooper & Sanchez on brief for appellant.
_______________
________________
Edwin J. Gale, United States Attorney, Margaret E. Curran and
_____________
__________________
Belkin, Assistant United States Attorneys, on brief for appellee.
______
____________________
____________________
Per Curiam.
__________
U.S.C.
1326(b)(2) to
unlawful
deportation.
He now
16-level enhancement
2L1.2(b)(2)
deported after
reentry
on
into the
ground
United
advances a single
the court erred
to his offense
the
conviction for
guilty under 8
that
in
level under
he had
been
an "aggravated felony."
His
enhancement--a
Island
marijuana--does
Rhode
not constitute
conviction
an
for
manufacturing
aggravated felony.
We
Echoing
the
definition
1101(a)(43), the
contained
commentary to
2L1.2
in
U.S.C.
defines "aggravated
crime as defined in
924(c)(2) ...."
in
include
law."
turn, is
"any
defined in
felony
(21
Id.
___
18
punishable
U.S.C.
U.S.C.
under
801 et
924(c)(2) to
the
seq.),
trafficking
the
Controlled
Substances
Act
Controlled
Substances
Accordingly, for
1901 et
within the
-2-
scope
of
924(c)(2) and
aggravated
offense
felony, it
must
be
thus
must meet
punishable
within
the definition
two criteria:
under
one
of
of
"first, the
these
three
enumerated
felony."
statutes;
and
second,
United States v.
_____________
the offense
Forbes, 16 F.3d
______
must
be
33, 35
of
these
criteria
are
satisfied
here.
U.S.C.
841(a)(1).
As we explained in both of
as
applicable
U.S.C.
authorized
U.S.C.
"any
Federal
or State
offense
Federal or
State law
as a
3559(a), an
offense is
and
R.I.
Gen.
Laws
21 U.S.C.
classified
felony."1
felony if
And such
by
Under 18
the maximum
one year.2
Both 21
21-28-4.01(A)(2)(a)
____________________
1.
Rhode
Island law is to
11-1-2.
-3-
Defendant
Rather,
2L1.2
does
not
he contends
here
that
results
seriousness
of his
take
in
issue with
a "mechanical
a
sentence
offense.
He
this
application" of
that
exaggerates
emphasizes that,
being involved in
the manufacture
or sale of
large-scale basis,
he was found
in possession
marijuana
(along
plant
with
of
the
far from
drugs on
of a
half-smoked
reasoning.
any
single
marijuana
propriety
of
a possible
United States v.
______________
(departing
enhancement; rather, it
downward
See,
___
e.g.,
____
675 (W.D.N.Y.
1992)
analogous circumstances),
aff'd
_____
Hinds, 803
_____
downward
under
departure.
concerns the
F. Supp.
departure
ultimately
decided,
downward,
relying
defendant's
was
in
on
warranted.
its
discretion,
other
overall conduct
The
factors
was less
district
not
to
depart
indicating
benign than
court
that
it might
first appear.3
challenge to
____________________
3. For example,
defendant was convicted
in 1988
of
possession of heroin.
In 1991, he was convicted of using a
false social security number and making false statements to
purchase eleven pistols and a shotgun.
Defendant was on
supervised release from the firearms offenses when he was
arrested on the marijuana charge. Among the items found in
his apartment at that time were over $28,000 in cash hidden
behind a refrigerator panel and 27 boxes of empty glassine
packets, which according to the police report are used to
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____________________
package heroin.
And in 1993, following his return to the
United States (which he explained was for the purpose of
visiting his three daughters), defendant was arrested for
attempting to pass counterfeit currency; he thereafter is
said to have provided police officials with a false name and
date of birth in an attempt to obstruct the investigation.
These charges remained pending at the time of sentencing.
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