The Honorable John B. Jones, United States District Judge for 1

the District of South Dakota, adopting the report and

recommendations of the Honorable Mark A. Moreno, United States

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.

Wayne Robert Haggerty appeals from the district court's denial of

1

his motion to dismiss the indictment charging him with illegal reentry into

the United States after deportation subsequent to a prior aggravated

felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). We affirm.

I.

On January 26, 1994, in the Municipal Court of California, County of

San Diego, Haggerty, a Canadian citizen, was convicted of possession of

methamphetamine, a violation of section 11377(a) of 
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the California Health and Safety Code and section 17(b)(4) of the

California Penal Code. He received a suspended sentence and was placed on

probation for three years. On June 29, 1994, in the same court, Haggerty

pled guilty to unauthorized possession of methamphetamine, a violation

section 11377(a) of the California Health and Safety Code. He received a

suspended imposition of sentence and was placed on probation for three

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 without

receiving permission for admission from the United States Attorney General.

He was arrested in South Dakota, and his indictment charged:

That on or about 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, was

found in the United States after having been arrested and

deported from the United States on November 17, 1994, at

Seattle, Washington, after having been convicted of a prior

aggravated felony, to-wit, possession of a controlled substance

(methamphetamine) on June 29, 1994, in Municipal Court of

California, County of San Diego, and that prior to his

reembarkation from a place outside the United States, Wayne

Robert Haggerty a/k/a Robert Wayne Haggarty a/k/a Travis Cody

had not received the consent of the Attorney General of the

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 that his

prior conviction did not constitute an aggravated felony within the meaning

of 8 U.S.C. § 1326(b)(2). Following a hearing, the magistrate judge issued

a report and recommendation finding that the June 29, 1994, drug conviction

constituted an aggravated felony and that the indictment was not fatally

flawed for failing 
 The Honorable Charles B. Kornmann, United States District

2

Judge for the District of South Dakota.

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to allege the January 26, 1994, drug conviction. The district court

adopted the magistrate judge's report and denied the motion to dismiss the

indictment.

Haggerty entered a conditional guilty plea, reserving his right to

appeal the denial of his motion to dismiss the indictment. The district

court sentenced Haggerty to sixty-six months in prison followed by two

2

years' supervised release.

II.

Haggerty contends that the indictment 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 indictment

did not need to charge a prior aggravated felony and thus was valid. 

Section 1326 of Title 8 provides in relevant part:

Reentry of deported alien; criminal penalties for reentry of

certain deported aliens

 (a) Subject to subsection (b) of this section, any alien

who--

 (1) has been arrested and deported or excluded

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--

 . . . .
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 (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 aggravated 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 issue, only one has held that the section constitutes

a separate offense. Compare United States v. Campos-Martinez, 976 F.2d

589, 592 (9th Cir. 1992) (separate offense) with United States v. DeLeonRodriguez, 70 F.3d 764, 767 (3rd Cir. 1995) (enhancement provision), cert.

denied, 116 S. Ct. 1343 (1996); United States v. Palacios-Casquete, 55 F.3d

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 of the courts of appeals that have addressed the issue have

found that the plain language and structure of the statute lead to the

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; Vasquez-Olvera, 999 F.2d at 945-

46. The First Circuit found the language and structure of the statute

unhelpful in determining Congressional intent, but found that the section

was an enhancement provision based on the policy against allowing prior

prejudicial 
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felonies 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 based

upon its analogy of the section to section 1325. Campos-Martinez, 976 F.2d

at 591-92.

We agree with those circuits which have determined that section

1326(b) is a sentence enhancement. The plain language and structure of the

statute indicate that it is a sentence enhancement. First, subsection (a)

defines the crime of illegal reentry, and subsection (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 (8th

Cir. 1993) (finding 18 U.S.C. § 844(i) to be enhancement 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 to

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 "clearly

predicates punishment upon conviction of the underlying crime." See Ryan,

9 F.3d at 668. Cf. Rush, 840 F.2d at 577 (amendment could stand on its own

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 explicit reference to conviction

under subsection (a); the penalty provisions in subsection (b) are directly

tied to the penalty in subsection (a); and the title of the section

indicates that it is a sentencing provision. The fact that subsection (b)

does not provide guidelines for the sentencing hearing is outweighed by the

several factors indicating it is a sentence-enhancement provision. See

id.; see also Ryan, 9 F.3d at 668 (discussing Fifth Circuit's factors

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 577

(same).

Because subsection (b)(2) specifies an enhancement rather than a

separate offense, the indictment did not need to charge Haggerty with an

aggravated felony. See United States v. Hamell, 3 F.3d 1187, 1189 (8th

Cir. 1993) (enhancement need not be charged in indictment), cert. denied,

114 S. Ct. 1121 (1994). Thus, we need not address whether the indictment

sufficiently charged Haggerty with an aggravated felony by charging the

second, but not the first, conviction for drug possession. 

III.

Haggerty contends that his prior conviction did not constitute an

aggravated felony within the meaning of section 1326(b)(2). An "aggravated

felony" is defined to include:

illicit trafficking in a controlled substance (as defined in

section 802 of Title 21), including a drug trafficking crime

(as defined in section 924(c) of Title 18); . . .

The term applies to an offense described in this paragraph

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 trafficking crime as including "any felony punishable under the

Controlled Substances Act (21 U.S.C. 801 et seq.)." Thus, Haggerty's

conviction is an aggravated felony if (1) it is punishable under the

Controlled Substances Act, and (2) it is a felony. 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.
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Under federal law, an offense is a felony if the maximum term

authorized for the offense is "more than one year." 18 U.S.C. § 3559(a).

Possession of drugs is punishable as a felony under the Controlled

Substances Act if the defendant has a prior federal or state drug

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 "any

Federal or State offense classified by applicable Federal or State Law as

a felony." 21 U.S.C. § 802(13). We find that Haggerty's conviction is

also a felony under California law. Possession of methamphetamine is

punishable by imprisonment in the county jail not exceeding one year or by

imprisonment in the state prison for a term of sixteen months, two years,

or three 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).

Haggerty argues that because he received a suspended imposition of

sentence following his second California conviction, he was convicted of

a misdemeanor. Section 17(b) of the California Penal Code states, in

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]fter a judgment imposing a punishment other than

imprisonment in the state prison.

. . . .

(3) [w]hen the court grants probation to a defendant without

imposition of sentence and at the time of granting probation,

on application of the defendant or probation officer

thereafter, the court declares the offense to be a misdemeanor.

Cal. Penal Code § 17(b) (West 1988 & Supp. 1996).
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Haggerty does not meet either of the foregoing criteria. He does not

meet the requirement of subsection (1) because "`[a]n order granting

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 requirement of subsection (3)

because 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.

Accordingly, Haggerty's June 29, 1994, conviction was a felony based on

California law. We find no basis to support Haggerty's contention that the

California court must be permitted the opportunity 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 state laws are too arbitrary

to be used as the basis for interpreting federal criminal statutes.

Because Haggerty's conviction 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.