The Honorable Frank J. Magill was a Circui t Judge in active service at the time 1 this case w as submitted. He assumed senior status on April 1, 1997, before thi s opinion was filed. The Honorable David S. Doty, United States District Judge for the District of 2 Minnesota, sitting by designation. 

## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________
No. 96-1420

___________ United States of America, *

* Appellee, *

* Appeal from the Unite d States
v. * District Court for the

* Western District o f Missouri. Alfredo Baca-Valenzuela, * also known as Alfredo V. Baca, *

* Appellant. *

___________ Submitted: June 11, 1996
Filed: July 7, 1997

___________
Be fore MAGILL, Circuit Judge, HENLEY, Senior Circui t 1 Judge, and DOTY, District Judge. 2-2- ___________The Honorable D. Brook Bartlett, Chief Judge, United States District Court for 3 the Western District of Missouri.
-3- HENLEY , Senior Circuit Judge.

Alfredo Baca-Valenzu ela was indicted on one count of il legallyreentering the United States after bein g de ported subsequent to conviction of an aggravate d felon y, in violation of 8 U.S.C. §§ 1326(a) & (b)(2)

. Baca -Valenzuela pleaded guilty and was sentenced by th e dist rict court to 51 months in prison, three year s 3 supe rvised release, and a special assessment fine o f $50.00.In his plea agreement, Baca-Valenzuela reserve d th e right to contest several rulings of the distric t
cour t. On this appeal, Baca-Valenzuela raises fou r chal lenges to his conviction and sentence. Finding n o merit to any of these challenges, we affirm.

Background Consideration of the claims raised here requires a brief review of events surrounding Baca-Valenzuela' s earlier federal conviction in 1987, his depo rtation from the United States in 1992, as well as the 199 5 conviction and sentence from which the present appeal is taken.

Sometime in 1986 (or before) Baca-Valenzuel a illegally entered the United States for the first time

.

In April 1987, Baca-Valenzuela was convicted in th e United Sta tes District Court for the District of Arizona for aiding and abetting the possession of cocaine wit h int ent to distribute, in violation of 21 U.S.C. § 841(a )(1), and 18 U.S.C. § 2. He was sentenced to te n-4-

years in prison. In 1987, upon learning of the conviction, th e Immigration and Naturalization Service (INS) issued t o Baca -Valenzuela an Order to Show Cause (why Baca

Valenzuela should not be deported) and Notice of Hearing. The INS, however, took no-5-

further action on this Order to Show Cause.

At the time of the Arizona drug charge in 1987 , convic tion of a felony -- such as the controlle d substances offense for which Baca-Valenzuela was arrested

-- was a deportable offense. 8 U.S. C. § 1251(a)(4 ) (198 7). Reentry into the United States afte r deporta tion carried a maximum penalty of two years i n prison. 8 U.S.C.§ 1326 (1987)

While Baca-Valenzuela was imprisoned, Congress passe d stat utes in 1988 and 1990 amending the relevan t provisions on illegal reentry after deportation.

First , the Anti-Drug Abuse Act of 1988 (1988 Act )
amen ded the Immigration and Nationality Act to provid e for a new maximum penalty of 15 years in prison for a n alie n convicted of reentry after having been deporte d subsequent to commissi on of an "aggravated felony." Pub. L. No. 100-690, § 7345(b)(2), 102 Stat. 4181 , 4471(19 88), codified as amended at 8 U.S.C. § 1326(b ) (1988).

The Act also added a provision which defined the new term "aggr avated felony" as including "murder, any drug traf ficking crime as defined in section 924(c)(2) o f title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined i n section 921 of such title, or any attempt or conspirac y to co mmit any such act, committed within the Unite d States." Pub. L. No. 100-690, § 7342, 102 Stat. 4181 , 446 9-70 (1988), codified as amended at 8 U.S.C. § 1101(a)(43)(1988). Secti on 7345(b) of the 1988 Act provided that th e-6-

amendments setting forth enhanced penalties for alien s who i llegally reentered the United States afte r convictionof a felony or aggravated felony "shall apply to an y alien who enters, attempts to enter, or is foun d in, t he United States on or after the date of th e enactment of this Act [November 18, 1988 ]." Pub. L. No. 100- 690, § 7345(b), 102 Stat. 4181, 4471 (1988)

. Howe ver, the Act did not specifically address th e question whether crimes committed before the effectiv e date should be counted as aggravated felonies fo r purposes of theAfter the 1990 amendment, Section 1101(a)(43) provided in full: 4 The term "aggravated f

elony" means murder, any illicit trafficking in any controlled substance (as defined in section 802 of Title 21), including any dr ug trafficking crime as defined in section 924(c)(2) of Title 18 , or any illic it trafficking in any firearms or destructive devices as defined i n section 921 of such title, any offense described in sect ion 1956 of Title 18 (relating to laundering of monetary ins truments), or any crime of violence (a s defined in section 16 of Title 18, not including a purely politica l off ense) for which the term of imprisonment imposed (regardless of any suspens ionof such imprisonment) is at least 5 years, or any attempt o r -7- new enhanced penalties.

Se cond, in the Immigration Act of 1990 (1990 Act) , Congress again addressed the deportation of aggravate d felons and their punishment for illegal reent ry. Section 602 o f the 1990 Act amended 8 U.S.C. § 1251 to provid e specifical ly that conviction of an aggravated felony was ground s for deportation. Pub. L. No. 101-649, § 620(a)(2)( A)(iii), 104 Stat. 4978, 5080(1990). However, by its terms, Section 602 of the 1990 Act did not appl y to deporta tion proceedings for which notice was provided to the ali en before March 1, 1991. Pub. L. No. 101-649, § 602(d), 104 Stat. 4978, 5082 (1990).

Section 501 of the 1990 Act also substantiall y expanded the definition of "aggravated felony " to include not only any drug trafficking crime under § 9 24(c)(2) but also "any illicit trafficking in any controll ed substance (as defined in section 102 of the Controlled Substance s Act" as well as certain other money laundering an d violent offenses. Immigration Act of 1990, Pub. L. No

. 101- 649, § 501(a)(2), 104 Stat. 4978, 5048 (1990) , codified as amended at 8 U.S.C. § 1101(a)(43) (1990). 4conspiracy to commit any such act. Such term applies to offense s

described in the previous sentence whether in violation of Federal or State law and a lso applies to offenses described in the previous sentence i n viola tionof foreign law for which the term of imprisonment wa s completed within the previous 15 years. 8 U.S.C. § 1101(a)(43) (1990) (emphasis supplied).
Another amendment in 1994 further increased the penalty for unauthorize d 5 reentry after deportation subsequent to an aggravated felony to 20 years in prison. Pub. L. No. 103-322, § 130001(b)(2), 108 Stat. 1796, 2023 (1994)
-8- The eff ective date provision in the 1990 Act state d that i t would "apply to offenses committed on or afte r the date of the enactment of this Act [November 29 , 1990]" except that the amendment expanding th e definition of a ggravated felony to include illicit trafficking i n any controlled substance would "be effective as i f includ ed in the enactment of section 7342 of the Anti

Drug Abuse Act of 1988." Pub. L. No. 101-64 9, § 501(b), 104 Stat. 4978, 5048(1990).

Thus, after the 1988 and 1990 amendments, a cont rolled substances offense, such as the one Baca

Valenzuela had been convicted of in 1987, was classified
as an aggravated felony and the maximum penalty fo r illegal re entry into the United States after deportation for such an offense was increased from two to 15 years. 5

One additional change in law occurred while Baca

Vale nzuela was imprisoned. Effective November 1, 1991 , the United States Sentencing Commission amende d Sentencing Guideline Section 2L1.2 by the addition of a new subsec tion (b)(2), providing for a 16 level increase in the base offense level of a defendant who illegall yU.S.S .G. § 2L1.2 provides a base offense level of eight for illegal reentry into 6 the United States. Subsection (b) provides: (b) Specif

ic Offense Characteristics. If more than one applies, use th e greater: (1) If the defendant previously was deported after a conviction for a felony, other than a felony involving violation of the immigration laws, increase by 4 levels. (2) I f the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels

. U.S.S.G. § 2L1.2(b) (emphasis supplied).
The Application Notes to this Section explicitly reference the definition o f ag gravatedfelony in 18 U.S.C. § 1101(a)(43) and provide in relevant part that a n "aggrava tedfelony" includes "any illicit trafficking in any controlled substance (a s defi nedin 21 U.S.C. § 802), including any drug trafficking crime as defined in 1 8 U.S.C. § 924(c)(2)." U.S.S.G. § 2L1.2 , comment. (n. 7 ).
-9- reentered the United States after having been previously deported following conviction of an aggravated felony

. U.S.S.G. § 2L1.2(b)(2). 6Title 8 U.S.C. §§1326(a) and (b) provide: 7 (a) Subject to subsection (b) of this section, any alien who -- (1) has been

arrested and deported or excluded and deported, and thereafter
-10- In 1992, as the date for Baca-Valenzuela's releas e from p rison neared, the INS canceled its 1987 Order t o Show Cause and substituted a new Order to Show Caus e citi ng the enhanced penalties provided in the amende d Immi gration and Nationality Act for aliens convicted o f
an "aggravated felony." Then, upon his release fro m prison in 1992, Baca-Valenzuela was detained by the IN S pending deportation. On October 14, 1992, animmigration judge ordered Baca-Valenzuela deported pursuant t o Section 241(a)(2)(A)(iii) of the Immigration an d NationalityAct due to his status as an alien with a pr ior conviction for an aggravated felony. 8 U.S.C

. §1251(a)(2)(A)(iii). Baca-Valenzuela did not file a direc t appeal of the deportation order and was the n deported.

In 19 95, Baca-Valenzuela was arrested in Coope r Coun ty, Missouri, and charged under Missouri state la w with posse ssion of a controlled substance. On March 13, 1995 , Baca-Valenzuela was convicted of that offense an d fined $5000.00. That same day, Missouri offi cials turned him over to the custody of the INS.

On March 29, 1995, B aca-Valenzuela was indicted by a federal grand jury in the Western District of Missouri on
one count of reentering the United States after havin g been deported subsequent to an aggravated felony, i n violation of 8 U.S.C. §§ 1326(a)(1)&(2) and (b)(2). 7(2) enters, attempts to enter, or is at any time found in, the United States , unless (A) p rior to his reembarkation at a place outside the Unit edStates or his application for admission from foreig n contiguous territory, the Attorney Ge neral has expressly consented tosuch alien's reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shal l esta blish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under Title 18, or imprisoned not more than 2 years, or both. (b) Notwithstanding subsection (a) of this se ction, in the case of any alien described in such subsection -- (1) whose deportation was subsequent to a conviction fo r co mmissionor three or more misdemeanors involving drugs , crimes against the person, or both, or a felony (other than a n aggrav atedfelony), such alien shall be fined under Title 18 , imprisoned not more than 10 years, or both; or (2) whose deportation was subsequent to a conviction fo r commi ssionof an aggravated felony , such alien shall be fine d under such Title, imprisoned not more than 20 years, or both. 8 U.S.C. §§ 1326 (a), (b) (1997) (emphasis supplied).
We have previously held that Section 1326(b) does not state the elements of a
se parate crime but is rather a sentence enhancement provision setting forth greate r punishment for offenders violating Section 1326(a) who ha ve previously been deported subsequent to a conviction for a felony, subsection (b)(1), or an aggravated felony , subsection (b)(2). United States v. Haggerty , 85 F.3d 403, 405-406 (8th Cir. 1996).
-11- Baca-Valenzuela move d to dismiss the indictment. He rais ed several claims challenging the application o f the Immigration and Nationality Act, as amended, to hi sThe Honorable John T. Maughmer, Chief United States Magistrate Judge , 8 United States District Court for the Western District of Missouri. Although Baca-Valenzuela's briefs label and order the issues somewhat 9 differe ntly, we believe that the four claims identified here better subsume the actua l substance of the challenges set forth to his conviction and sentence both in the briefs and at oral argument.
-12- conduct. The United States magistrate judge rejected al l 8 challenges to the indictment. The district c ourt adopted the recommendations of the magistrate judge a nd overruled the motion to dismiss the indictment. Baca-Valenzuel a then plead ed guilty but reserved the right to pursue his lega l challenges to the conviction and sentence o n appeal.

On this appeal, Baca-Valenzuela raises four relate d challenges to his conviction and sentence for the illegal reentryoffense. First, Baca-Valenzuela contends that 9 both hi s 1992 deportation and his 1995 conviction ar e invalid as a matter of statutory construction. He say s that wh en he committed the underlying drug offense i n 1987 that crime was not an "aggravated felony " and by its term s the 1990 statute did not intend retroactiv e appl ication of the enhanced penalties for aggravate d felo nies. Second, appellant argues that, even assumin g the 1990 statute meant to include in the expande d definition of "aggravated felony" crimes comm itted before its ena ctment, the statute as applied to him violate s the e x post facto clause of the Constitution. Third , appellant urges that the 16 level upward enhancement o f his sentence was invalid, because he was convicted onl y of "aid ing and abetting" the drug offense rather tha n commission of the offense as a principal. Fourth , appel lant claims that he was entitled to a downwar d-13-

depa rture in sentencing on grounds that the retroactiv e application of the sentence enhancement for prio r conviction of an "aggravated felony" was not a factor the Sentencing Commission had taken into account whe n drafting the Sentencing Guidelines.-14-

Analysis Statutory Construction of the Aggravated Felo ny Provision Baca-Valenzuela firs t contends that in drafting the Immi gration and Nationality Act Congress did not inten d to treat crimes committed before the 1988 and 199 0 amendments as aggravated felonies for purposes o f enhanced punishment. He argues that his 1987 dru g offen se was not an aggravated felony at the time of it s commissionor his conviction because no such category of offenses then existed. Further, Baca-Valenzuel a main tains that there is no evidence that Congres s intended retroactive application of the aggra vated felony provision. Accordingly, argues Baca-Valenzue la, his 1992 deportatio n and 1995 conviction and sentence were flawed for being premised on a prior conviction which could not be correctly categorized as an aggravated felony.

Because Baca-Valenzuela challenges a ruling on a matter of law, i.e. , the interpretation of a statute -

- the Imm igration and Nationality Act, as amended -- w e revi ew the district court's decision de novo. Unite d States v. Crawford , No. 96-2808, slip op. at 18 (8th Cir. June 23, 1997).

The baseline for interpreting a statute is always th e "lang uage of the statute itself," United States v

. James , 478 U.S. 597, 604 (1986), for we "must giv e effec t to the unambiguously expressed intent o f Congr ess." Chevron, U.S.A., Inc. v. Natural Resource s Defense Council, Inc. , 467 U.S. 837, 843 (1984).

Baca-Valenzuela was convicted in 1987 of aiding an d abet ting the possession of cocaine with intent t o distribute, in violation of 21 U.S.C. § 841(a )(1), and 18-15-

U.S.C. § 2. This offense was a federal felony at th e time of conviction for which Baca-Valenzuela wa s sentenced to ten years in prison. Baca-Valen zuela's 1995 sentence for illegal reentry was enhanced on the theor y that this 1987 conviction constituted "illici t traf ficking in [a] controlled substance, as defined i n Sec tion 802 of Title 21," under the definition o f "aggrav ated felony" in 8 U.S.C. § 1101(a)(43) as it ha d been expanded in 1990.SEC

. 501. AGGRAVATED FELONY DEFINITION

. 10 (a) I N GENERAL . -- Paragraph (43) of section 101(a) (8 U.S.C. 1101(a)) is amended -- (1) by aligning its left margin with the left margin of paragrap h (42), (2) by inserting "any illicit trafficking in any controlled substance (as def ined in section 102 of the Controlled Substances Act) , including" after "murder,", (3) by i nserting after "such title," the following: "any offens e described in

section 1956 of title 18, United States Code (relating to laundering of monetary instruments), or any crime of violenc e (as defi ned in section 16 of title 18, United States Code, no t inc luding a purely political offense) for which the term o f imp risonment

imposed (regardless of any suspension of suc h imprisonment) is at least 5 years, ", (4) by striking "committed within the United States", (5) by ad ding at the end the following: "Such term applies t o offenses described in the previou s sentence whether in violation of Federal or State law.", and (6 ) by inserting before the period of the sentence added b y paragraph (5) the following: "and also applies to offens es described in the previous sentence in violation of foreign law for which th e termof imprisonment was completed within the previous 1 5 years". (b) EF FECTIVE DATE . -- The amendments made by subsection (a) shal l apply to offenses committed on or after the date of the enactment of this Act [November 29, 1990], except that the amendments made b y paragraphs (2) and (5) of subsection (a) shall be effective as if included in the enactment of section 7342 of the Anti-Drug Abuse Act of 1988. Pub. L. No. 100-649, § 501, 104 Stat. at 5048.
-16- The starting point, then, for statutor y inte rpretation in this case is the language of Sectio n 501 of the 1990 amendment. In particular, Sectio n 10 501( a)(2) provided that the definition of an aggravate d felon yincluded "any illicit trafficking in an y-17-

cont rolled substance." In addition, Congress stated i n Section 501(b) that for the new offenses adde d in 1990 to th e list of aggravated felonies in Section 501(a) -

- money laundering-18-

and crimes of violence -- only those committ ed after the effec tive date of the 1990 Act could serve to enhance a sente nce for illegal reentry. However, Section 501(b ) spec ificallyprovided with respect to the drug offense s in p aragraph (a)(2) that the 1990 amendments wer e "effect ive as if included in the enactment of sectio n 7342 of the Anti-Drug Abuse Act of 1988."

Thus, Congress stated explicitly that a mone y laundering offense or a crime of violence, for example , could not be the basis for an aggravated felony sentence enha ncement unless committed on or after November 29 , 1990. For drug offenses, however, Congress provided a n effective date only indirectly by treating them "as if " they were included in the 1988 Act.

We must refer then to the language of the 1988 Act t o dete rmine its effective date (and by extension whethe r drug offenses committed before 1988 are aggravate d felo nies). Congress did not specifically state in th e 1988 Act whether crimes committed before its passag e could be c ounted as "aggravated felonies." Section 7342 of t he 1988 Act defined "aggravated felony" as meanin g "murder, any drug trafficking crime . . . , or an y il licit trafficking in any firearms or destructiv e devices . . . ." But Section 7342 did not specify whe n such offenses must have occurred to constitute a n aggravated felony.
Despite the absence of an explicit effective dat e pro vision in the "aggravated felony" definition, w e believe it is clear by necessary implication from th e langu age and design of the Act as a whole that Congres s intended to include drug convictions prior to 1988.-19-

First, the language of several substantive provision s of the 1988 Act which make use of the term "aggravate d felony" would not make sense unless the term include d pre- enactment convictions. And, it is, of course , axiomatic that we read the language of a stat ute so as to give ef fect to each word enacted by Congress. Pelofsk y v. Wallace , 102 F.3d 350, 353 (8th Cir. 1996).At least two other provisions of the 1988 Act make clear Congress' intent that 11 the defi nition of "aggravated felony" should apply to pre-enactment convictions

. Section 7346 set forth

criminal penalties for those who aid or assist aliens (previously convicted of an aggravated felony and deported) in entering or remaining in the United States. Section 7346 specifically provided that it wou ld apply "to any aid or assistance which occurs on or af

ter the date of the enactment of this Act." Pub. L. No. 100-690, § 7346, 102 Stat. at 4471 (1988). As with Sec tion 7345, it would make little sense for this substantive liability provision to apply immediately upon enactment unless th e aggravat edfelonies to which it referred included those occurring before enactment

. Similarly, S ection 7349 provided a 10 year ban on reentry into the United States o f aliens convicted of an aggravated felony. Congre ss expressly stated that this provision
-20- For example, we note that the 1988 Act provided that the e nhanced penalties in 8 U.S.C. § 1326 for person s convicted of illegal reentry after deportatio n subsequent to an aggravated felony should "apply to any alien wh o enter s, attempts to enter, or is found in, the Unite d States on or after the date of the enactment of thi s Act." Pu b. L. No. 100-690, § 7345(b), 102 Stat. a t 4471. Because the enhanced penalties applied immediately on the date of enactment [November 18, 1988] to any alien who attempted to enter the United States (wit hout consent after deportation subsequent to conviction for a n aggr avated felony), it seems clear that the aggravate d felonies r eferred to must include those occurring before November 1 8, 1988. It would have been impossible for an alie n entering, attempting to enter, or being found i n the United States on that date to have a prio r conviction for an aggravated felony if such aggravated felonie s incl uded only offenses committed after that date. Thus , the only i nterpretation of the definition of aggravated felony, 8 U.S.C. § 1101(a)(43), which would also giv e meaningful effect to this substantive provisi on employing th e term, 8 U.S.C. § 1326(b), is that "aggravate d felony" included pre-enactment convictions. 11"shall apply to any alien convicted of an aggravated felony who seeks admission to the

United States on or after the date of the enactment of this Act." Pub. L. No. 100-690, § 7349, 102 Stat. at 4473(1988).
-21- Second, in several o f the other substantive sections of the 1988 Act which usedIn two other sections of the 1988 Act a substantive provision regarding th e 12 de portationof aliens who commit an aggravated felony is explicitly limited t o prospective crimes only. See §§ 7344(b) ("Grounds of Deportation") & 7347(c ) ("Expedited Dep ortation Proceedings for Aliens Convicted of Aggravated Felonies"). Pub. L. No. 100-690, §§ 7344(b) & 7347(c), 102 Stat. at 4471, 4472(1988).
-22- the term " aggravated felony" Congress explicitly limited the statute's application to aliens convicted o f aggrav ated felonies "on or after the date of th e enactment. " Such provisions indicate that Congress knew how -- when it chose -- to restrict the disabilitie s ari sing from conviction of "aggravated felonies" t o prospective crimes only

. Moreover, such express limitation to futur e offenses would have been unnecessary and redu ndant if the definition of "aggravated felony" did not alr eady include convictions prior to the effective date of the Act.

Fo r example, Section 7343 of the 1988 Act provide d that an alien convicted of an "aggravated felony" woul d be i mmediately deportable. However, Section 7343 als o state d that it applied only to an "alien who has bee n convicted, on or after the date of the enactment of this Act, of an aggravated felony." If, as Baca-Valenzuel a co ntends, the term aggravated felony as defined in 8 U.S.C. § 1101(a)(43) was meant by Congress to b e restricted to post-enactment crimes, then tha t portion of Sect ion 7343 making aliens subject to deportation onl y for prospective offenses would be redundant. 12

Thus, it seems clear from the language of the 198 8 Act and its design that "aggravated felony" as define d included crimes for which an alien was convic ted prior to Novemb er 18, 1988. This is the only interpretation o f-23-

the statutory language which will both give e ffect to all the words Congress chose and recognize Congress ' deci sions to place temporal limitations on th e effectiveness of some substantive provisions using th e term "aggravated felony" but not others.

This re ading of the statute is consistent with tha t of t he other Courts of Appeals which have faced thi s issue. For example, in United States v. Aranda

Hernandez , 95-24-

F.3d 97 7, 981-83 (10th Cir. 1996), cert. denied , 117 S

. Ct. 1314 (1997), an alien -- deported after c onviction of
a drug offense in 1984 -- was rearrested in 1994 an d charged with illegal reentry after deportatio n subsequent to con viction of an aggravated felony. He argued tha t under th e effective dates of the 1988 and 199 0
amen dments to the Immigration and Nationality Act hi s 1984 co nviction could not be an aggravated felony. Th e Tent h Circuit disagreed and held that the aggravate d felo nyenhancement in Section 1326(b) applied to al l covered dr ug offenses, regardless of the date committed.
Similarly, in Unite d States v. Adkins , 102 F.3d 111 (4th Cir. 1996), the Fourth Circuit upheld a conviction for reentry after deportation subsequent to a n aggravated felo nywhere the underlying drug offense occurred i n January 1988, prior to the enactment of the 1 988 and 1990 amendments

. Accord , United States v. Troncoso , 23 F. 3d 612 (4th C ir. 1994) (Section 1326(b) conviction based on January 1988 drug conviction affirmed), cert. denied , 513 U.S. 1116 (1995). See also Scheidemann v. INS , 83 F.3 d 1517 (3d Cir. 1996) (crimes are aggravated felonies fo r pu rposes of 8 U.S.C. § 1182(c) waiver of deportatio n "regardless of the conviction date").
Our conclusion that Baca-Valenzuela's 1987 conviction constitutes an aggrav ated felony for purposes of Section 1326(b) is also consistent with the interpretation of the Act by the Board of Immigration Appeals, the division of the Justice Department with technical expertise in interpretation of the immigration laws. In Matter of A-A- , 20 I. & N. De c. 492 (1992), for example, the Board held that an alien's request fo r discr etionary waiver of inadmissibility under 8 U.S.C. § 1182(c) must be denie d because such relief was barred for all aggravated felonies. The Board held that th e definition of aggravated felony attached retroactively to all convictions described in 8-25-

U.S.C. § 1101(a)(43) "whether occurring before, on, or after November 18, 1988." We believe that the recent decision by the Ninth Circuit in United States v

. Gomez-Rodriquez , 96 F.3d 1262 (9th Cir. 1996), is not to the contrary. In Gomez

Rodriqueza unanimous court sitting en banc held that an alien's indictment for illegalBut cf. United States v. Campbell , 94 F.3d 125 (4th Cir. 1996), cert. denied , 13 1997 WL 274271 (1997), where theFourth Circuit explicitly disagreed with the Ninth Circuitand held that an enhanced sentence for illegal reentry applied where th e underlying aggravated felony was manslaughter ( i.e. , a crime of violence) committed prior to the effective date of the 1990 Act. Having concluded that the substance of the claims Baca-Valenzuela raises in 14 his attack on his 1995 conviction and sentence are without merit, we also affirm th e district court's decision that the appellant has failed to satisfy the required threshold to raise the same claims i n a collateral attack on the 1992 deportation order. See United States v. Torres-Sanchez , 68 F. 3d 227, 230 (8th Cir. 1995) ("In a section 132 6 prosecu tion, the defendant may collaterally attack the underlying deportatio n proceedings and prevent the government from using them as a basis for conviction if (1) an e rror in the deportation proceedings rendered the proceedings fundamentall y unfair in violation of due process, and (2) the error functionally deprived the alien of the ri ght to judicial review.") (citing United States v. Mendoza-Lopez , 481 U.S. 828, 840 (1987)). Baca-Valenzuela cannot establish fundamental unfairnes s because he was
-26- reentry after deportation subsequent to conviction for an aggravated felony must b e dismissed where the underlying felony was a cr ime of violence -- assault with a deadly weapon -- which occurred before the definition of aggravated felony was expanded to include suc h crimes. The court relied explicitly on the language of the 199 0 13

ame ndment

restricting the definition of aggravated felony to "offenses committed o n
or afte r the date of the enactment" of the 1990 Act for those new crimes (such a s crime s of violence) added in 1990. 96 F.3d at 1264. We believe the necessary implication of the Ninth Circuit's reasoning is that for those oth er crimes included in the definition of aggravated felony (such as d rug crimes), for which the 1990 Act provides

no exp licit limitation to prospective offenses only, the Act includes such offenses , whenever committed.

Insum, we conclude that based on the language of th e Immigration and Nationality Act, as amended in 1988 an d 1990, Congress intended Baca-Valenzuela's 1987 dru g co nviction to be treated as an aggravated felony fo r pu rposes of enhanced punishment under Section 1326(b). 14clearly deportable for his prior conviction of a felony even if his offense did no t

constitute an aggravated felony. Moreover, he has not establish ed that the error, if any, hadthe effect of depriving him of judicial review of the deportation order. Rather, it appears, that Baca-Valenzuela was informed of his right to appeal the deportation order but declined to pursue an appeal.
-27--28-

Ex Post Facto Next Baca-Valenzuela contends that if the statut e does apply to his conduct it constitutes an invalid e x post facto law.
Article I, Section 9, of the Constitution provides that "No Bill of Attainder or ex post facto Law shall be passed." The Supreme Court has stated that the ex post facto clause bars laws that "retroactively alter the definition of crime or increase th e punishment for criminal acts." California Dep't of Corrections v. Morales , 115 S. Ct. 1597, 1601 (199 5). And, we have held that an ex post facto law is one that eithe r makes criminal conduct that was legal when done or inflicts greater punishment for an offense than the law when the offense was committe d. United States v. Crawford , No. 96-2808, slip op. at 12.

Baca-Valenzuela's ex post facto claim is based on th e ar gument that he is being punished for 1987 conduct , under l aws effective in 1988 and 1990. This contentio n rests on a misinterpretation of Section 1326. Ou r cou rt -- as well as numerous other courts that hav e addressed the issue -- has indicated that the punishments set f orth in Section 1326 are for the offense o f
reen try(after deportation and without consent from th e Attorney General) not for the underlying crimina l offense

. United States v. Haggerty , 85 F.3d at 404-05

. See als o United States v. Saenz-Forero , 27 F.3d 1016 , 1020 (5th Cir. 1994); United States v. Arzate-Numez , 1 8 F.3d 730, 735 (9th Cir. 1994). Accordingly, Baca

Vale nzuela was punished for his recent illegal reentr y of the United States -- sometime between hi s deportation in 1992 and his arrest in Missour i in 1995 -- well after the Immigration Act was amended -- and not for his 1987 drug offense.-29--30-

Because Section 1326(b) is merely a sentenc e enhancement provision providing for greater punishmen t for certain offenders committing the instant offense -

- re entering or being found in the United States afte r deporta tion subsequent to an aggravated felony-- i t plainlyis not an ex post facto law. As we have said , "[s]o long as the actual crime for which a defendant i s being sent enced occurred after the effective date of the
new statute, there is no ex post facto violation. " United States v. Farmer , 73 F.3d 836, 841 (8t h Cir. 1996) (quotin g United States v. Allen , 886 F.2d 143, 146 (8t h Cir. 1989)), cert. denied , 116 S. Ct. 2570 (1996).

Des pite these clear principles, Baca-Valenzuel a argues her e that Section 1326(b) is an ex post facto law under the reasoning of United States v. Davis , 936 F.2d 352 (8t h Cir. 1991), cert. denied , 503 U.S. 908 (1992)

. This ar gument is misplaced. In Davis the defendant wa s convicted of a felony. Later a new statute was passe d barring felons from carrying firearms for tenyears after their release from prison. The question was whether this
new bar on firearms possession constituted an ex pos t facto law as applied to a person convicted of a felon y pri or to the enactment of the firearms statute. W e concluded it was a forbidden ex post facto law, because,
as a pplied, the new statute plainly increased th e punishment for a past offense.

That is not the case here. Like other recidivist an d
ca reer offender provisions in current law, Sectio n 1326(b) imposed on Baca-Valenzuela a greater punishmen t beca use he had previously been convicted and deported

. Howe ver, there is no doubt here that the crime Baca

Valenzuela was punished for was his illegal reentry an d-31-

residen ce in the United States in 1992-1995 and not hi s drug activ ities in 1987. Section 1326(b) as applied to Baca-Valenzuela is not an ex post facto law.

16 Base Offense Level Sentence Enhancement Baca-Valenzuela also challenges his sentence o n groun ds that he should not have received the 16 leve l offense enhancement for an "aggravated felony " because he was convicted of "aiding and abetting" cocain e possession rather than commission of the crime as a principal.-32-

Sec tion 2L1.2 of the Sentencing Guidelines provide s that persons convicted of illegal reentry int o the United State s shall receive a base offense level of 8. The n subs ection (b) provides that if the defendant wa s previouslydeported after conviction for an aggravate d felony his base offense level should be increased by 1 6 levels. Accordingly, in calculating Baca-Valenzuela' s sentence the magistrate judge started with a base offense level of 8, added 16 for the prior conviction of a n aggr avated felony, and deducted 3 for acceptance o f respo nsibilityfor a total offense level of 21. Wit h Baca-Valen zuela's criminal history category of III, that offense le vel corresponded to a sentence of 46-57 months and Baca-Valenzuela was sentenced to 51 month s in prison.

Baca-Valenzuela contended in the district court tha t the 1 6 level enhancement for prior conviction of a n ag gravated felony was in error, because the crime o f whic h he was convicted -- "aiding and abetting" th e possession of cocaine with intent to distribu te -- is not specifically listed as an aggravated felony i n either the statu te, 8 U.S.C. § 1101(a)(43), or the applicabl e guid eline, U.S.S.G. § 2L1.2(b)(2). The district court , however, r ejected this argument finding that under wellestablished principles of federal criminal la w conviction of aiding and abetting an offense is the same a s conviction of the offense as a principal.

We agree with the reasoning of the district court

. A funda mental theory of American criminal law is tha t there is n o offense of aiding and abetting or accomplice liab ilityas such. Instead, accomplice liability i s merely a m eans of determining which persons were closely enough related to the underlying offense to b e prosecuted-33-

and convic ted of that offense. Whether one is convicted
as a principal or as an accomplice/aider and abettor, the crime of w hich he is guilty is the same: whatever is the underlying offense. United States v. Simpson , 979 F.2 d 1282 , 1285 (8th Cir. 1992) (Magill, J.), cert. denied , 507 U.S. 943 (1993).

Here, Baca-Valenzuela's role in the 1987 drug offens e was apparently such that the prosecutor chose to charg e him with possession of cocaine with intent to distribute,-34-

21 U. S.C. § 841(a)(1), as an aider and abettor under 1 8 U.S.C. § 2. Although convicted on a theory o f accomplice liability, Baca-Valenzuela was nevertheless c onvicted and punished for the cocaine offense -- the same as if he had been the principal or only party involved in the conduct. Simpson , 979 F.2d at 1286. He properly recei ved enhanced puni shment based on this prior conviction. See Unite d St ates v. Mitchell , 23 F.3d 1, 2-3 (1st Cir. 1994 ) (aidi ng and abetting a crime of violence is the same a s commis sion of the crime as a principal for purposes o f enhanced sentence). Simpson , 979 F.2d at 1285 (same).

The one case cited by Baca-Valenzuela as supportin g his c laim -- that Congress did not intend to includ e aiding and abetting as an aggravated felony -- is United States v. Mendoza-Figueroa , 28 F.3d 766 (8th Cir. 1994). In th at case a panel of this court held that where th e op erative statute and sentencing guideline did no t spec ificallyinclude conspiracy as a basis for a n enha nced punishment, Congress did not intend to cove r co nspiracies. The panel rejected the government' s argument t hat the statutory language listing substantive drug offenses should be read as implicitly includin g consp iracyas well. However, the panel opinion wa s vacat ed and the court en banc held that conspiracy t o distribute marijuana was a controlled substance offens e for purposes of enhanced punishment. Unitied States v

. Mendoz a-Figueroa , 65 F.3d 691 (8th Cir. 1995). In an y even t, Mendoza-Figueroa does not support the furthe r propo sition that such a statute should not be read t o inclu de aiding and abetting. Unlike accomplic e liab ility, conspiracy is plainly a separate crimina l offens e; a person is guilty of the crime of conspirac y not o f the underlying offense as a conspirator. See ,-35-

e.g. , United States v. Martin , 867 F.2d 476 (8th Cir

. 1989).
Accordingly, the district court correctly conclude d that Baca-Valenzuela had been convicted of a crim e involving "illicit trafficking in any controlle d substa nce (as defined in 21 U.S.C. § 802)" unde r Sentencing Guideline Section 2L1.2. This cri me is within the definition of aggravated felony in both the statut e and t he sentencing guideline and thus Baca-Valenzuel a properly received an enhanced sentence based on his prior commission of the aggravated felony.-36-

Downward Departure Finally, Baca-Valenzuela contends that the distric t
cou rt erred in denying his request for a downwar d departure in his sentence. Baca-Valenzuela's theory was that in drafting the Sentencing Guidelines th e Sentencing Commi ssion did not anticipate that the sentenc e enhan cement for an "aggravated felony" would b e in terpreted to include crimes committed before th e se ntence enhancement became law. Thus, he argued, a downward d eparture was required to avoid both unintended consequenc es and injustice. This argument is misplaced.

A district court may depart from a guideline s sen tence if the court "finds that there exists a n aggravating or mitigating circumstance of a kind, or t o a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that shou ld result in a sentence different from tha t des cribed." 18 U.S.C. § 3552(b). According to th e Supreme Court's recent decision in Koon v. Un ited States , 11 6 S. Ct. 2035, 2046 (1996), the issue is whethe r "certain a spects of the case [are] unusual enough for it to fall outside he heartland of cases in th e Guideline[s]."

As we have recently held, "[w]hen a district cour t correctly understands that it has the authori ty to depart
on a particular basis from the guidelines, the 'court' s discret ionarydecision not to depart . . . i s unreviewable on appeal absent an unconstitutiona l motive.'" United States v. Hernandez-Reyes , No. 96-3548, slip op. at 3 (8th Cir. June 11, 1997), quoting, Unite d State s v. Field , No. 96-1590, slip op. at 9 (8th Cir

. April 7, 1997). Baca-Valenzuela has certainly shown n o-37-

motive for the district court's rejection of his request for downward departure other than that his request wa s without legal merit.
Here, we do not believe that Baca-Valenzuela' s substantive argument -- that the Sentencing Commissio n did not adequately take into account how the aggravate d felony enhancement might be applied to a case like thi s

-- has merit. But, in any event, it is clear that th e di strict court fully understood the argument Baca

Valenzuela wasThe court rejected Baca-Valenzuela's request for a downward departure , 15 saying:
I seeno basis for a request for a downward departure because it is clear to me that the Sentencing Comm ission contemplated the term aggravated felony and included it in its penalty structure for unlawfully entering o r re maining in the United States, and that for the reasons that we've bee n discussing, the definition of aggravated felony, whether in the guidelines or in the statute, does not unfairly or unlawfully add to the penalty for past offenses.
It affects only the penalty for the current offense, and so I don't see any ba sis -- I mean, I think to give this defendant a downward departur e because the offense that is determined to be an aggravated felon y occurr edin the past really makes no sense. It doesn't, the Sentencin g Commission clearly contemplated that, as did Congress.
-38- making and rejected it. In such circumstances, w e 15 decl ine to upset the well-reasoned decision of th e sentencing judge.

Accor dingly, for the reasons stated herein, th e jud gment of the district court is in all respect s affirmed.

A true copy.

Attest:

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