### The Honorable John B. Jones, United State s District Judge for 1 

### the District of South Dakota, adopting the report an d re commendations of the Honorable Mark A. Moreno, United State s Magistrate Judge for the District of South Dakota. ___________ No. 95-3684

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Wayne Robert Haggerty, also * known as Robert Wayne * Haggarty, also known as * Travis Cody, * * Appellant. *

___________ Submitted: March 12, 1996 Filed: June 10, 1996

___________ Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

___________ WOLLMAN, Circuit Judge.

Wa yne Robert Haggerty appeals from the district court's denial o f 1 his motion to dismiss the indictment charging him with illegal reentry int o the Un ited States after deportation subsequent to a prior aggravate d felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). We affirm.

I.
On January 26, 1994, in the Municipa l Court of California, County of San Diego, Haggerty, a Canadian citizen, was convicted of possession o f methamphetamine, a violation of section 11377(a) of

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the C alifornia Health and Safety Code and section 17(b)(4) of th e California Penal Code. He received a suspended sentence and was placed on probation for three y ears. On June 29, 1994, in the same court, Haggerty pled guilty to unauthorized possession of methamphetamine, a violatio n section 11377(a) of t he California Health and Safety Code. He received a suspended imposition of sentence and was placed on probation for thre e years subject to various conditions, including serving 240 days in jail. Following these convictions, Haggerty was deported to Canada on November 17, 1994.

On December 31, 1994, Haggerty reentered the United States withou t receiving permission for admission from the United States Attorney General
. He was arrested in South Dakota, and his indictment charged:

That on or a bout the 31st day of December, 1994, in Todd County, in the District of South Dakota, Wayne Robert Haggerty a/k /a Robert Wayne Haggarty a/k/a Travis Cody, an alien, wa s fou nd in the United States after having been arrested an d dep orted from the United States on November 17, 1994, a t Seattle, Washington, after having been convicted of a prio r aggravated felony, to-wit, possession of a controll ed substance (metham phetamine) on June 29, 1994, in Municipal Court o f Cal ifornia, County of San Diego, and that prior to hi s reembarkation from a place outside the United States, Wayn e Robert Haggerty a/k/a Robert Wayne Haggarty a/k/a Travis Cody had not received the consent of the Attorney General of th e United States to reapply for admission and to enter the United States, in violation of 8 U.S.C. § 1326(a) and 1326(b)(2).
Haggerty filed a motion to dismiss the indictment, alleging th at his prior conviction did not constitute an aggravated felony within the meanin g of 8 U.S.C. § 1326(b)(2). Following a hearing, the magistrate judge issue d
a report and recommendation finding that the June 29, 1994, drug convictio n constituted an aggravated felony and that the indictment was not fatally flawed for failing

### The Honorable Charles B. Kornmann, United States Distric t 2 

### Judge for the District of South Dakota. -3- to a llege the January 26, 1994, drug conviction. The district cour t adopted the magistrate judge's report and deniedthe motion to dismiss the indictment.
Haggertyentered a conditional guilty plea, reserving his right t o appeal the denial of his motion to dismiss the indictment. The district
cour t sentenced Haggerty to sixty-six months in prison followed by tw o

2 years' supervised release.

II.
Haggerty contends that the indictmen t is invalid because it does not allege the January 26, 1994, California drug conviction. We hold, however , that because section 1326(b)(2) is an enhancement provision, the indictmen t did not need to charge a prior aggravated felony and thus was valid.
Section 1326 of Title 8 provides in relevant part:

Reentr y

of deported alien; criminal penalties for reentry o f certain deported aliens (a) Su bject to subsection (b) of this section, any alie n who-- (1) has been arrested and deported or exclude d and deported, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States . . . 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--

. . . .

### -4- (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. Whether a prior conviction for an ag gravated felony is an element of section 1326(b)(2) or is a condition triggering enhancement is a question of first impression in this circuit. Of the several other circuits that have addressed this i ssue, only one has held that the section constitutes
a s eparate offense. Compare United States v. Campos-Martinez , 976 F.2 d 589, 592 (9th Cir. 19 92) (separate offense) with United States v. DeLeonRodriguez , 70 F.3d 764, 767 (3rd Cir. 1995) (enh ancement provision), cert. denied , 116 S. Ct. 1343 (1996); United States v. Palacios-Casquete , 55 F.3 d 557, 559 (11th Cir. 1995) (same), cert. denied , 116 S. Ct. 927 (1996) ; United States v. Munoz-Cerna , 47 F.3d 207, 210 n .6 (7th Cir. 1995) (same); United States v. Cole , 32 F.3d 16, 18 (2d Cir.) (same), cert. denied , 115 S. Ct. 497 (1994); United States v. Crawford , 18 F.3d 1173, 1177 (4th Cir. ) (same), cert. denied , 115 S. Ct. 171 (1994); United States v. Forbes , 16 F.3d 1294, 1297-1300 (1st Cir. 1994) (same) and United States v. VasquezOlvera , 999 F.2d 943, 945 (5th Cir. 1993) (same) , cert. denied , 114 S. Ct. 889 (1994). Several o f the courts of appeals that have addressed the issue have found that the plain language and structure of the statute lead to th e conclusion that Congress intended it to be a sentence enhancement rather than a separate offense. See DeLeon-Rodriguez , 70 F.3d at 766; Cole , 32 F.3d at 18-19; Crawford , 18 F.3d at 1177; Vasque z-Olvera , 999 F.2d at 945- 46. The First Circuit found the language and structure of the statut e unhelpful in determin ing Congressional intent, but found that the section
was an enhancement provision based on the policy against allowing prio r prejudicial

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felon ies to be introduced in front of a jury. Forbes , 16 F.3d at 1298

- 1300. The Ninth Circuit found the provision to be a separate offense base d upon its analogy of the section to section 1325. Campos-Martinez , 976 F.2 d at 591-92.

We agree with those circuits which have determined that sectio n 1326(b) is a sentence enhancement. The plain language and structure of th e statute indicate that it is a sentence enhanceme nt. First, subsection (a) defines the crime of illegal reentry, and subsec tion (b) does no more than single out subsets of those persons reentering the country illegally for
more severe punishment. See United States v. Ryan , 9 F.3d 660, 667-69 (8t h Cir. 1993) (finding 18 U.S.C. § 844(i) to be enh ancement provision), aff'd on reh' g on other grounds , 41 F.3d 361 (8th Cir. 1994) (en banc), cert . denied , 115 S. Ct. 1793 (1995); United States v. Rush , 840 F.2d 574, 577 (8th Cir.) (en banc) (finding Armed Career Criminal Act amendment t o possession of firearm statute to be enhancement provision), cert. denied , 487 U.S. 1238 (1988). Second, subsection (b) cannot stand on its own as
a separate offense without reference to subsection (a), as it "clearl y predicates punishment upon conviction of the und erlying crime." See Ryan , 9 F.3d at 668. Cf. Rush , 840 F.2d at 577 (amendment could stand on its ow n as separate offense).
We agree with the Fifth Circuit that subsection (b) contains many of the common indicia of sentence-enhancement provisions. See Vasquez-Olvera , 999 F.2d at 945. Subsection (b) contains explic it reference to conviction under subsection (a); the penalty provisions in subsection (b) are directl y tied to t he penalty in subsection (a); and the title of the sectio n indicates that it is a sentencing provision. Th e fact that subsection (b) does not provide guidelines for the sentencing hearing is outweighed by th e severa l factors indicating it is a sentence-enhancement provision. Se e id. ; see a lso Ryan , 9 F.3d at 668 (discussing Fifth Circuit's factor s indicating enhancement provision set out in United States

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v. Davis , 801 F.2d 754, 755-56 (5th Cir. 1986)); Rush , 840 F.2d at 57 7 (same).

Because subsection (b)(2) specifies an enhancement rather than a separate offense, the indictment did not need to charge Haggerty with an aggravate d felony. See United States v. Hamell , 3 F.3d 1187, 1189 (8t h Cir. 1993) (enhanceme nt need not be charged in indictment), cert. denied , 114 S. Ct. 1121 (1994 ). Thus, we need not address whether the indictment suffic ientlycharged Haggerty with an aggravated felony by charging th e second, but not the first, conviction for drug possession.

III.
Haggertycontends that his prior conviction did not constitute a n aggravated felony within the meaning of section 1326(b)(2). An "aggravate d felony" is defined to include:
illici t trafficking in a controlled substance (as defined i n sec tion 802 of Title 21), including a drug trafficking crim e (as defined in section 924(c) of Title 18); . . . The term applies to an offense described in this paragrap h whether in violation of Federal or State law . . . .

8 U.S.C. § 1101(a)(43). Section 924(c)(2) of Title 18 in turn defines a drug t rafficking crime as including "any felony punishable under th e Control led Substances Act (21 U.S.C. 801 et seq.)." Thus, Haggerty' s conv iction is an aggravated felony if (1) it is punishable under th e Controlled Substances Act, and (2) it is a felon y. See Forbes , 16 F.3d at 1301. Haggerty concedes that his conviction is punishable under section 844(a) of the Controlled Substances Act, and we find that it is a felony under both federal and state law.

### -7- Under fede ral law, an offense is a felony if the maximum ter m authorized for the of fense is "more than one year." 18 U.S.C. § 3559(a). Possessi on of drugs is punishable as a felony under the Controlle d Substanc es Act if the defendant has a prior federal or state dru g conviction, as the defendant may be sentenced to "not more than two years. " 21 U.S.C. § 844(a).

A felony is defined under the Controlled Substances Act as "an y Federal or State offe nse classified by applicable Federal or State Law as
a felon y." 21 U.S.C. § 802(13). We find that Haggerty's conviction i s also a felony under California law. Possession of methamphetamine i s punishable by imprisonment in the county jail no t exceeding one year or by imprisonment in the s tate prison for a term of sixteen months, two years,
or thre e years. Cal. Health & Safety Code § 11377(a) (West 1991); Cal
. Penal Code § 18 (West 1988). An offense is a felony under California law if it is "punishable with death or by imprisonment in the state prison." Cal. Penal Code § 17(a) (West 1988 & Supp. 1996).
Haggertyargues that because he received a suspended imposition o f sentence following his second California conviction, he was convicted of
a misdemea nor. Section 17(b) of the California Penal Code states, i n relevant part, that when the court has discretion to punish a crime as a felony or a misdemeanor, it is a misdemeanor for all purposes:
(1) [a]f ter a judgment imposing a punishment other tha n imprisonment in the state prison.

. . . . (3) [w]hen the c ourt grants probation to a defendant without imposition of sentence and at the time of granting probation, on application of the defendant or probation office r thereafter, the court declares the offense to be a misdemeanor.
Cal. Penal Code § 17(b) (West 1988 & Supp. 1996).

### -8- Haggerty does not meet either of the foregoing criteria. He do es not meet t he requirement of subsection (1) because "`[a]n order grantin g probation is not a judgment.'" United States v. Robinson , 967 F.2d 287, 293 (9th Cir. 1992) (quoting People v. Smith , 16 Cal. Rptr. 12, 13 (Cal. Ct. App. 1961)). Haggerty does not meet the req uirement of subsection (3) becau se the California court has never declared his conviction to be a misdemeanor. California courts considering the section have found that an offense that is punishable alternatively as a felony or a misdemeanor is regarded as a felony for every purpose until judgment. People v. Banks , 348 P.2d 102, 110 (Cal. 1959); see also Robinson , 967 F.2d at 293
. Acc ordingly, Haggerty's June 29, 1994, conviction was a felony based o n California law. We find no basis to support Haggerty's contention that th e California court must be permitted the opportuni ty to revoke his probation before he is charged with the federal crime.
Haggerty argues, finally, that in Taylor v. United States , 495 U.S. 575 (1990), the Supreme Court determined that st ate laws are too arbitrary to be used as the basis for interpreting federal criminal statutes
. Because Haggerty's co nviction would have also been a felony under federal law, however, his argument is meritless.

IV.
The conviction and sentence are affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.