USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 95-1730

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL ANTONIO CUEVAS,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Rosenn, Senior Circuit Judge,*

____________________

and Lynch, Circuit Judge.

_____________

____________________

Louis B. Abilheira for appellant.

__________________

Margaret E. Curran,
__________________
whom
Gale,
____

Sheldon Whitehouse,
__________________

Assistant United States Attorney,

United States

Assistant United States

Attorney, and

Attorney, were on

with

Edwin J.
________

brief, for the

United States.

____________________

February 2, 1996
____________________

____________________

*Of the Third Circuit, sitting by designation.

LYNCH, Circuit Judge.

Before he was convicted for being

_____________

illegally

U.S.C.

present in

1326,

Dominican

States

in violation

of 8

Antonio

Cuevas, a

citizen

the

Rafael

Republic, had

Rhode Island

in this

the United

three separate encounters

criminal justice system.

sentencing appeal is

of

with the

The primary question

whether the disposition

of at

least one of Cuevas' state offenses was a "conviction" for an

"aggravated felony" under

U.S.S.G.

enhancement

the prior

2L1.2(b)(2) (Nov.

1994).

does not apply to

offense enhancement

Cuevas says

him, arguing that

of

that the

one of the

offenses was not a "conviction" under state law, and that the

others were not "aggravated felonies."

the grounds

of

We hold otherwise, on

that the definition of "conviction"

federal, not state, law

and that Cuevas'

is a matter

reading of the

term "aggravated

felony" is foreclosed by

of

Cuevas

this court.

falls within

a recent decision

the group as

to whom

Congress and the Sentencing Commission intended longer prison

terms

illegal

aliens previously deported

felony convictions

after aggravated

and so we affirm his sentence.

Facts
_____

Each of the three times that

Cuevas faced charges under

the criminal law in Rhode Island, he submitted a plea of nolo

____

contendere, his plea

__________

was accepted, he

was judged guilty

the crime charged, and he was sentenced.

three

years

probation

for

breaking and

-2-

of

In 1983 he received

entering

into

building in the nighttime

1984 he

with intent to commit

larceny; in

was sentenced to a year in prison plus probation for

possession

of cocaine; and in

1986 he was

sentenced to two

years probation for possession of cocaine.

Cuevas was deported

in 1989.

He

returned illegally in

1990, then was arrested again in 1994 on another Rhode Island

charge of cocaine

possession.

and was sentenced to

probation,

he was

authorities.

Once

probation.

found

in the

again, he pleaded

While serving that

United

States by

He was subsequently indicted

nolo
____

term of

federal

in federal court

on a charge of having been found in the United States without

obtaining the

consent of the Attorney

of

1326.

8 U.S.C.

fifty-seven

He

months in

General, in violation

pleaded guilty and was sentenced to

prison under

U.S.S.G.

2L1.2.

His

appeal raises two challenges to his sentence.

The "Aggravated Felony" Enhancement

___________________________________

As in many sentencing

appeal to

court

the defendant

imposed a

sentence

appeals, the consequences of this

are not

negligible.

of fifty-seven

The district

months.1

Cuevas

____________________

1.

Section

2L1.2

of

the

Guidelines,

defendant's offense of conviction,

of 8.

The district

court then added

level

of 21.

IV, that
months;

under

3E1.1,

governs

sets a base offense level

subsection (b)(2) and subtracted three

of responsibility

which

sixteen levels

under

levels for acceptance

producing a total

offense

Charted against a criminal history category of

offense level yielded

a sentencing range

of 57-71

the district court imposed sentence at the bottom of

the range.

-33

says that he

should serve no

He argues that

2L1.2(b)(2)

more than twenty-one

months.2

the 16-level enhancement he received

of the

Guidelines3

for having

under

previously been

"deported after a conviction for an aggravated felony" cannot

stand, because neither of the two cocaine possession offenses

he

committed prior to his deportation

an

aggravated

felony."4

He

was a "conviction for

contends

that

his

first

____________________

2.

While Cuevas asserts that

him, he concedes

that his BOL of 8 was subject at least to a

4-level increase under

for

2L1.2(b)(2) does not apply to

2L1.2(b)(1).

acceptance of responsibility

Subtracting two levels

under

calculate his total offense level to

be 10, corresponding to

a sentencing range of 15-21 months, given a

category of IV.

3E1.1(a), he would

criminal history

3.

Under that guideline, defendants convicted under 8 U.S.C.

1326 who previously have

for

an

aggravated

been "deported after a conviction

felony"

are subject

to

substantial

increase in their sentences:

If

the defendant

previously

was deported

conviction for an aggravated

after

felony, increase by

16

levels.

U.S.S.G.

2L1.2(b)(2)

(Nov. 1994).

Application note

7 to

2L1.2 provides in relevant part:

"Aggravated felony,"

as used

in subsection

means

illicit

trafficking

. . .

controlled
802),

any

substance

including

defined

in

(as

any

drug

18 U.S.C.

"aggravated

described

in

21

previous

applies

crime

as

or

any

act.

to

sentence

any
U.S.C.

. . .

commit any such

felony"

the

in

in

trafficking

924(c)(2);

attempt or conspiracy to
term

defined

(b)(2),

The

offenses
whether

in

violation of federal or state law . . . .

U.S.S.G.

4.
and

2L1.2, comment. (n.7) (Nov. 1994).

Defendant also asserts that

entering

felony."

cannot

As the

be

his 1983 offense of breaking

characterized

as

an

government does not contest this

"aggravated
point, we

-44

violation was not itself an "aggravated felony," and that the

disposition of his

second drug offense, to which

nolo and for which

____

he received a sentence of

not

a "conviction" under Rhode

prongs of Cuevas' challenge.

Island law.

he pleaded

probation, was

We reject both

A.
__

Whether the 1986 Disposition Was a "Conviction"

_______________________________________________

Cuevas assumes

his second

that whether the disposition

cocaine possession offense is to

"conviction" for

purposes of the

Rhode Island law.

He posits

that offense under

conviction

for

assumption is

have

unfounded.

of

be considered a

Guidelines is a

matter of

that he was not "convicted"

Rhode Island law

purposes

in 1986 of

and so

Guidelines

of

it cannot be

2L1.2.5

This

In this Circuit and others, courts

consistently held that whether a particular disposition

____________________

treat it as conceded.

5.

He relies

provides:

on R.I.

Gen. Laws

12-18-3(a)

(1994), which

Whenever

any person

district court

shall be

or superior

nolo contendere, and

probation

. . .,

arraigned before

court,

and shall

then upon

the

and absent

completion

Evidence of

a violation of

conviction

a plea of

of said probation,

in any court
furnished
conviction

any

the
shall

purpose.

nolo contendere followed by a

period of probation, completed

the terms

for

without violation
may not be

of an

subsequent to

sentencing

court

individual for

following

a crime

of

introduced

proceeding, except that records may

to

on

of the

terms of the probation, the plea and probation

constitute

plead

the court places the person

probationary period,

not

the

be
the

committed

the successful completion of probation

on the prior offense.

-55

counts

is

as a "conviction" in the context of a federal statute

a matter

federal

of

federal determination.6

standards,

respect to

Cuevas

his 1986

was

cocaine

offense was an "aggravated

clearly

Under

"convicted"

possession offense.

In

court

Molina v.
______

addressed

availability of

who

have "not

with

As

that

felony," his 1989 deportation was

"after a conviction" for at least one aggravated

the enhancement of

applicable

felony, and

2L1.2(b)(2) was properly applied.

INS, 981
___

the

meaning

F.2d 14

of

(1st Cir.

statute

amnesty from deportation

been convicted

of any

1992), this

limiting

the

to illegal

aliens

felony" while

in the

United States.

that

case,

pleaded nolo
____

felony

8 U.S.C.

an illegal

alien,

contendere and
__________

The petitioner in

admitted that

he

been sentenced to

drug charges under Rhode Island law.

provision of Rhode

see
___

1255a(a)(4)(B).

had twice

probation on

Citing the same

Island law upon which Cuevas relies here,

R.I. Gen. Laws

12-18-3, the petitioner

argued that a

nolo plea to a drug charge followed by a sentence of straight

____

probation was not treated

and, therefore, should

as a "conviction" under

not be considered so for

state law

purposes of

____________________

6.

The

particular

guideline

implements a statutory penalty

immigration laws.

See
___

8 U.S.C.

at

issue

here,

enhancement found

2L1.2,
within the

1326(b); United States

_____________

v.

Restrepo-Aguilar, __ F.3d ___, ___,

________________
3 n.2 (1st Cir. Jan.
the

30, 1996).

No. 95-1660, slip op. at

Thus, our understanding

term "conviction" is informed both

immigration

of

by the law governing

offenses as well as the law under the Guidelines

governing the federal sentencing of those offenses.

-66

federal

(now

law.

Justice)

Molina, 981 F.2d at

______

Breyer rejected

specifically held that

19.

this

For the court, Judge

argument.

the term "conviction" is

The

court

a matter of

federal, not

see also
________

we

have

state, definition.

held

as

before,

it is

federal

used

(citing Molina, 981 F.2d

______

federal

215 F.2d

'convicted' in

question."

quotation marks

law

defines

the immigration

the

term

context."

The court noted that this

had held that "the meaning

the federal

Id.
___

237, 243 (1st

in

at 19)).

Circuit, forty years earlier,

word

F.2d at 19-20;

White v. INS, 17 F.3d 475, 479 (1st Cir. 1994) ("As

_____
___

'conviction'

the

Molina, 981
______

immigration law

at 19-20 (quoting

of

is a

Pino v. Nicolls,
____
_______

Cir. 1954) (Magruder,

J.) (internal

omitted), rev'd on other grounds,

_______________________

349 U.S.

901 (1955) (per curiam)).7

We follow Molina and

______

Pino and hold that the

____

meaning of

the word

"conviction"

in

2L1.2(b)(2)

Guidelines, which implements 8 U.S.C.

found

within the

immigration laws,

accordance with federal law.

Chong v. INS,
_____
___

accord
______

890 F.2d

Wilson v.
______

INS,
___

of

the

Sentencing

1326(b), a

is to be

provision

determined in

See also White, 17 F.3d at 479;

________ _____

284 (11th Cir.

43 F.3d

1989) (per

211,

215 (5th

curiam);

Cir.)

(per

____________________

7.

The

Supreme

Court in

its

Pino
____

decision expressed

no

disagreement with Judge Magruder's statement that the meaning

of "conviction"

is a

conviction at issue had

349 U.S. at

federal question,

but found

not attained "finality."

901; Wilson v. INS, 43 F.3d

______
___

that the
See Pino,
___ ____

211, 215 (5th Cir.)

(per curiam), cert. denied, 116 S. Ct. 59 (1995); Molina, 981

____________
______
F.2d at 20.

-77

curiam), cert. denied,

____________

INS, 380 F.2d 29

___

116 S. Ct.

59 (1995); Ruis-Rubio
__________

v.

(9th Cir.) (per curiam), cert. denied, 389

_____________

U.S. 944 (1967).

Support

context of

for this

conclusion

immigration statutes as

comes

well.

from

For

outside

the

example, the

Seventh Circuit

has recently

held, in applying

the penalty

enhancement provisions

of the Controlled Substances

U.S.C.

841(b)(1)(B),

that

felony

offense

constitutes

disposition

followed

"prior

would

sentence

so deemed

1994).9

of

even

under

state

probation8

though

the law

that

of the

McAllister, 29 F.3d
__________

Similarly, in 1983

this court

that a defendant who had entered a nolo contendere plea

____ __________

and was

been

guilty to

See United States v.

___ _____________

1180, 1184 (7th Cir.

held

by

of

conviction,"

not be

convicting state.

a plea

Act, 21

sentenced to probation

"convicted"

of a

crime

under Rhode

for purposes

Island law

of

had

the federal

____________________

8.
is a

For purposes

of determining whether a

"conviction" as a

matter of

state disposition

federal law, there

is no

meaningful distinction
probation

and

probation.

between a plea of

plea

of

nolo
____

guilty followed by

contendere
__________

followed

by

United States v. Bustamante, 706 F.2d 13, 15 (1st

_____________
__________

Cir.), cert.
_____

denied, 464 U.S.

______

856 (1983);

cf. Sokoloff
___ ________

v.

Saxbe, 501 F.2d 571, 574-75 (2d Cir. 1974) (stating principle
_____
in context of 21 U.S.C.

9.

Other

federal

Circuits are
law

governs

federal drug laws.

403-04
with

824(a)(2) license revocation case).

in
the

agreement
meaning of

"conviction"

in

that
the

See United States v. Mejias, 47 F.3d 401,

___ _____________
______

(11th Cir. 1995) (plea

adjudication

with McAllister
__________

withheld,

of nolo in
____
is

state court, even

conviction

for

federal

purposes); United States v. Meraz, 998 F.2d 182, 183 (3d Cir.
_____________
_____
1993);

United States v. Campbell, 980 F.2d 245, 250 n.6 (4th

_____________
________

Cir. 1992), cert. denied, 113 S. Ct. 2446 (1993).

_____ ______

-88

felon-in-possession-of-a-firearm

922(h)(1),

statute,

did

18

not

U.S.C.

even

though the

event

amount to

"conviction" under

state law.

United States v. Bustamante,

______________
__________

706 F.2d 13, 14-15 (1st Cir.) (Breyer, J.), cert. denied, 464
_____ ______

U.S. 856 (1983).

The decisions in Bustamante and, to a

__________

McAllister both
__________

were based

in part

lesser degree, in

on the Supreme

Court's

decision in Dickerson v. New Banner Institute, Inc., 460 U.S.

_________
__________________________

103 (1983).

In Dickerson, a defendant who had pleaded guilty

_________

to

a state offense, served a term of probation, and received

an

expungement of

"convicted"

of

his record

that offense.

argued that

The

he had

Court did

not

not been

agree.

Observing that a defendant "cannot be placed on probation

the court does not deem him to be guilty of

113-14,

the Court held that the

purposes of

the federal

a crime," id. at
___

meaning of "conviction" for

gun control

statutes is a

federal

matter:

Whether one has been "convicted within the language

of [a

federal] statute[]

question of

federal, not

is necessarily

. . .

state, law, despite

fact that the predicate offense

a
the

and its punishment

are defined by the law of the State.

Id. at 111-12.

if

___

It

is

true, of

course,

reached in Dickerson
_________

effectively

the particular

under the federal gun

abrogated

amended 18 U.S.C.

that

by

Congress

in May

outcome

control laws was

1986,

when

it

921(a)(20) to read as it currently does.

-99

That

congressional

disagreement with

action,

the

however,

reflects

Court's reasoning,

but

not

merely

that

Congress determined that its legislative objectives would

better served by defining

law.

See
___

McAllister,
__________

interpreting federal

be

"conviction" by reference to state

29

F.3d

at

1184-85

statutes is a question

("[W]hile

of federal law,

Congress can make the meaning of a statute dependent on state

law.").

The

decisions

in Dickerson
_________

and Bustamante
__________

still

stand for the proposition that, absent legislative indication

to the contrary, the meaning of

federal

statutory

prevailing federal law.

231, 236

scheme

See
___

"conviction" for purposes of

is

to

be

determined

Yanez-Popp v.
__________

(4th Cir. 1993) ("[Dickerson] still

INS, 998
___

under

F.2d

stands for the

_________

general proposition that federal

law governs the application

of Congressional statutes in the absence of a

plain language

to the contrary."); cf. McAllister, 29 F.3d at 1185 (treating

___ __________

Dickerson
_________

as still

laws, for

principle that

conviction

overrule the

reflects a

under

authoritative,

federal

outside context

guilty plea plus

law).

particular result

deliberate choice to define

gun

probation equals

Congress'

reached in

of

decision

to

Dickerson simply
_________

"conviction" as used

in a federal gun statute by reference to state law.

Congress has

not made the

the immigration laws.

Popp,
____

See
___

same choice with

Wilson, 43 F.3d
______

998 F.2d at 235; see also

________

respect to

at 215;

Yanez______

Molina, 981 F.2d at 22 ("Of

______

-1010

course, federal

law.").

gun control

Since the

amendment to the gun

Dickerson,
_________

the courts

May

law is not

1986

enactment

federal immigration

of the

statutory

control laws that effectively abrogated

including this

one, see
___

White, 17
_____

F.3d at

define

479; Molina,
______

981 F.2d

"conviction" according

for purposes of

at 19

have continued

to uniform

to

federal standards

the laws governing immigration offenses.

If

Congress had disapproved of these cases, it surely could have

amended the immigration laws

firearms

statute.

in the same fashion it

That Congress

has chosen

did the

not to

do so

reinforces our conclusion that "conviction" in the context of

the

laws governing

sentencing for

immigration offenses,

those offenses,

including federal

remains a matter

of federal

definition.

The disposition of Cuevas' 1986 state cocaine possession

offense

clearly

falls

within

"conviction," federally understood.

the

scope

This

of

the

term

is true both as

matter

the

law

of Guidelines interpretation and, more broadly, under

governing

immigration

particular guideline at issue

"conviction,"

the

here (

guideline

instructions

for

does provide

clear guidance.

offenses.

assessing a

that

the

2L1.2) does not define

contains

defendant's

See
___

Although

U.S.S.G.

the

general

criminal history

4A1.2.

That

guideline specifically provides that the phrase "'[c]onvicted

of an offense'

. . . means that the

-1111

guilt of the

defendant

has been established, whether by guilty

of nolo contendere."
____ __________

Relying in

U.S.S.G.

part on

States v. Pierce, 60
______
______

plea, trial, or plea

4A1.2(a)(4) (Nov. 1994).10

4A1.2,

this court held

F.3d 886 (1st Cir. 1995),

in United
______

petition for
________ ___

cert. filed (Oct. 19, 1995) (No. 95-6474), that a prior state
_____ _____

"conviction"

is established

guilt-establishing event

states

at

for Guidelines

(such as

that he does not wish to

892 (plea

of

nolo,
____

even

purposes by

a plea where

a defendant

contest the charges)."

if

followed

by

"a

Id.
___

withheld

adjudication,

constitutes

sentencing purposes);

F.2d

see also
___ ____

760, 761 (11th Cir.

there

cocaine

is no

dispute

offense could

"conviction"

for

United States v.
_____________

1990) (per curiam)

that

whether

be

considered

or not

federal

Jones, 910
_____

(same).

Cuevas'

Here,

second

a "conviction"

under

Rhode Island law, he was indeed adjudged guilty of that crime

following his nolo

____

on

that plea.

Cf.
___

plea and was sentenced to probation based

Dickerson, 460
_________

U.S. at

113-14 ("[O]ne

cannot be placed on probation if the court does not deem

to

be

guilty

of a

____________________

crime.").

It seems

clear

him

under the

10.

Although the direct applicability

limited to

the "purposes of [

underlying

the

provisions

are the

Guidelines'
same

as the

contained

provide

sentences

demonstrated recidivist

4A1.2]"

itself, the purposes

________

criminal

offense enhancement
increased

of this definition is

history

purpose

in
for

tendencies.

computation

behind the

2L1.2(b)(2)
defendants
The

prior

i.e.,
____
who

guidance given

to
have
in

4A1.2 is instructive, if not dispositive.

-1212

Guidelines,

then, that

Cuevas was

"convicted" of

the 1986

cocaine offense.

Furthermore, even

Guidelines, the law is

outside the specific

context of

the

plain that a state's acceptance

of a

defendant's plea of nolo contendere on a drug charge followed

____ __________

by

imposition

"conviction"

of

for

probationary

purposes

immigration offenses.

of

White, 17
_____

the

sentence

counts

statutes

relating

F.3d at 479;11 Molina,

______

F.2d at 18; Ruis-Rubio, 380 F.2d at 29-30.

__________

as

to

981

We conclude that

Cuevas was "convicted" in 1986 of his second cocaine offense,

both

within the

meaning of

the

Guidelines and

within the

broader context of the laws governing immigration offenses.

____________________

11.

In White, we said
_____

that a disposition meets the

federal

definition of "conviction" for purposes of the laws governing

immigration offenses if:

(1) a judge
[or

or jury has found the alien guilty or he

she] has

contendere

entered

or

has

plea

admitted

of

guilty

sufficient

or

nolo

facts

to

warrant a finding of guilty;

(2) the

judge has

ordered some

penalty, or restraint

form of punishment,

on the person's liberty to

be

imposed . . .; and
(3)

judgment of

entered if the
her]

of

person violates the

probation

requirements
availability

adjudication

or
of

of

fails
the

to

guilt

may

be

terms of his [or

comply

court's

order,

further proceedings

with

the

without

regarding

the

person's guilt or innocence of the original charge.

White,
_____

17 F.3d

Decision

at

479 (quoting

3044, 19 I. &

N. Dec. 546,

see also Wilson, 43 F.3d at

________ ______
981 F.2d at
satisfied

the

possession offense.

Interim

551-52 (B.I.A. 1988));

213-14 (adopting Ozkok); Molina,

_____
______

18 (quoting Ozkok).
_____
by

Matter of Ozkok,
________________

disposition

All of
of

these factors

Cuevas'

1986

are

cocaine

-1313

Once the disposition

is recognized to

of Cuevas' second

be a conviction, it clearly

"aggravated

felony"

"aggravated

felony"

includes any

within

meaning

of

the

under

U.S.S.G.

18 U.S.C.

cocaine offense

constitutes an

2L1.2(b)(2).

"drug

An

trafficking crime"

924(c)(2).

U.S.S.G.

2L1.2, comment. (n.7).

encompasses,

inter
_____

A "drug trafficking crime"

alia, any
____

offense

that is

in turn

both

(1) a

felony and (2) punishable under the Controlled Substances Act

(21 U.S.C.

801 et seq.).
__ ____

States v.
______

Restrepo-Aguilar, __
________________

slip op.

at 7

(1st Cir.

Forbes,
______

16 F.3d

1294,

defendant's second

undoubtedly

Forbes, 16
______

1301 (1st

offense of

F.3d

And

at

1301

924(c)(2); United
______

F.3d ___, ___,

Jan. 30,

qualifies as

possession offense

law).12

See 18 U.S.C.
___

No. 95-1660,

1996); United States v.

______________

Cir.

1994).

Here,

simple possession

a felony

in the

cocaine possession

as a felony

is, of

of cocaine

requisite sense.

(explaining that

is punishable

the

second

drug

under federal

course, punishable

under the Controlled Substances Act.

Thus,

the

offense

falls

See 21 U.S.C.
___

within the

definition

844(a).

of

"drug

____________________

12.

The possession offense, which was punishable under Rhode

Island law by a maximum of three years imprisonment, see R.I.

___
Gen. Laws
law,

21-28-4.01(C)(1)(a), is also a felony under state

see R.I.
___

Gen. Laws

offense punishable
year).

by a

11-1-2

term of imprisonment

Thus, regardless whether

punishable

as

felony

(defining "felony"

under

as an

exceeding one

the offense would have been

federal

law,

the

offense

qualifies as a felony for purposes of the definition of "drug

trafficking crime."

See
___

Restrepo-Aguilar, __ F.3d
________________

slip op. at 9.

-1414

at ___,

trafficking

"aggravated

crime" under

felony"

2L1.2(b)(2) and

therefore,

18 U.S.C.

within

the

application note

properly increased

924(c)(2), and

meaning

7.

The

of

is an

U.S.S.G.

district court,

the defendant's

base offense

level by 16 levels.

B.
__

Whether the 1984 Offense Was a "Felony"

_______________________________________

Even were one to

assume that the disposition of Cuevas'

1986 cocaine offense was not a "conviction," his challenge to

the application of

2L1.2(b)(2) would fail, because his 1984

conviction

for

cocaine

"aggravated felony."

does

was

itself

for

an

As to his 1984 cocaine offense, Cuevas

not dispute that he was "convicted."

that,

it

possession

Rather, he argues

while the offense was a felony under Rhode Island law,

would

have

prosecuted

been punishable

under federal law,

"felony," nor a "drug

this

as

a misdemeanor

and therefore could

if

not be a

trafficking crime," nor an "aggravated

felony" for purposes of

precisely

only

2L1.2(b)(2).

argument,

however,

in

We recently rejected

United States
______________

v.

Restrepo-Aguilar, __ F.3d ___, No. 95-1660 (1st Cir. Jan. 30,

________________

1996).

Thus, even apart from Cuevas' 1986 cocaine possession

offense, the

district

court properly

sentence by 16 levels in view of

enhanced

defendant's

his 1984 offense, which was

itself an "aggravated felony" under

2L1.2(b)(2).

Criminal History Category Computation

_____________________________________

-1515

Cuevas argues that the district

two points

to

his Guidelines

court erroneously added

criminal history

computation

based on a

offense

finding that defendant had

of conviction

while under

committed his federal

a sentence

of probation

imposed by the Rhode Island state court for a 1994 state drug

offense.

if the

See U.S.S.G.
___

4A1.1(d) (Nov. 1994) ("Add

defendant committed

the instant offense

2 points

while under

any criminal justice sentence, including probation . . . .").

Defendant

United

contends that because

States

offense while

in 1990,

under his

he

1994

he illegally

could not

have

reentered the

committed that

state probationary

sentence.

This argument has no more than superficial appeal.

The unambiguous terms of

was convicted

reenters and

the statute under which Cuevas

establish that a deported

remains in the

alien who illegally

United States

can violate

the

statute at three

different points in time: when he "enters,"

"attempts to enter,"

this

country.

or when he

U.S.C.

States v. Rodriguez, 26
______
_________

"is at

1326(a).

any time found

As was said

in"

in United
______

F.3d 4 (1st Cir. 1994), "we think it

plain

that 'enters,' 'attempts to enter' and 'is at any time

found

in'

describe

three

distinct occasions

deported alien can violate Section 1326."

Cuevas was

indicted

specifically for

on

the

charge to which he pleaded guilty.

-1616

Id. at 8.
___

being "found" in the United States in violation of

That was the

which

offense

of

1326(a).

Thus, even

though

defendant

illegally reentered

1990, he committed his

"found."

serving a

drug

Rodriguez,
_________

the United

States in

1326(a) offense in 1995, when he was

He was

unquestionably

criminal probationary sentence for

his 1994 state

conviction at

26 F.3d

that time.

at 8.

There

district court's application of U.S.S.G.

was no error

4A1.1(d).

in the

Affirmed.
_________

-1717