The Honorable Frank J. Magill was a Circuit Judge in active service at the time 1

this case was submitted. He assumed senior status on April 1, 1997, before this

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 United

States

v. * District Court for the

* Western District of

Missouri.

Alfredo Baca-Valenzuela, *

also known as Alfredo V. Baca, *

*

Appellant. *

___________

 Submitted:

June 11, 1996 

 

Filed: July 7, 1997

___________

Before MAGILL, Circuit Judge, HENLEY, Senior Circuit

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-Valenzuela was indicted on one count of

illegally reentering the United States after being

deported subsequent to conviction of an aggravated

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

Baca-Valenzuela pleaded guilty and was sentenced by the

district court to 51 months in prison, three years

3

supervised release, and a special assessment fine of

$50.00.In his plea agreement, Baca-Valenzuela reserved

the right to contest several rulings of the district

court. On this appeal, Baca-Valenzuela raises four

challenges to his conviction and sentence. Finding no

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 deportation from

the United States in 1992, as well as the 1995 conviction

and sentence from which the present appeal is taken.

Sometime in 1986 (or before) Baca-Valenzuela

illegally entered the United States for the first time.

In April 1987, Baca-Valenzuela was convicted in the

United States District Court for the District of Arizona

for aiding and abetting the possession of cocaine with

intent to distribute, in violation of 21 U.S.C. §

841(a)(1), and 18 U.S.C. § 2. He was sentenced to ten
-4-

years in prison.

In 1987, upon learning of the conviction, the

Immigration and Naturalization Service (INS) issued to

Baca-Valenzuela an Order to Show Cause (why BacaValenzuela 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,

conviction of a felony -- such as the controlled

substances offense for which Baca-Valenzuela was arrested

-- was a deportable offense. 8 U.S. C. § 1251(a)(4)

(1987). Reentry into the United States after

deportation carried a maximum penalty of two years in

prison. 8 U.S.C.§ 1326 (1987)

While Baca-Valenzuela was imprisoned, Congress passed

statutes in 1988 and 1990 amending the relevant

provisions on illegal reentry after deportation. 

First, the Anti-Drug Abuse Act of 1988 (1988 Act)

amended the Immigration and Nationality Act to provide

for a new maximum penalty of 15 years in prison for an

alien convicted of reentry after having been deported

subsequent to commission of an "aggravated felony."

Pub. L. No. 100-690, § 7345(b)(2), 102 Stat. 4181,

4471(1988), codified as amended at 8 U.S.C. § 1326(b)

(1988).

The Act also added a provision which defined the new

term "aggravated felony" as including "murder, any drug

trafficking crime as defined in section 924(c)(2) of

title 18, United States Code, or any illicit trafficking

in any firearms or destructive devices as defined in

section 921 of such title, or any attempt or conspiracy

to commit any such act, committed within the United

States." Pub. L. No. 100-690, § 7342, 102 Stat. 4181,

4469-70 (1988), codified as amended at 8 U.S.C. §

1101(a)(43)(1988). 

Section 7345(b) of the 1988 Act provided that the
-6-

amendments setting forth enhanced penalties for aliens

who illegally reentered the United States after

conviction of a felony or aggravated felony "shall apply

to any alien who enters, attempts to enter, or is found

in, the United States on or after the date of the

enactment of this Act [November 18, 1988 ]." Pub. L. No.

100-690, § 7345(b), 102 Stat. 4181, 4471 (1988).

However, the Act did not specifically address the

question whether crimes committed before the effective

date should be counted as aggravated felonies for

purposes of the 
After the 1990 amendment, Section 1101(a)(43) provided in full: 4

The term "aggravated felony" means murder, any illicit trafficking in any

controlled substance (as defined in section 802 of Title 21), including any

drug trafficking crime as defined in section 924(c)(2) of Title 18, or any

illicit trafficking in any firearms or destructive devices as defined in

section 921 of such title, any offense described in section 1956 of Title 18

(relating to laundering of monetary instruments), or any crime of violence

(as defined in section 16 of Title 18, not including a purely political

offense) for which the term of imprisonment imposed (regardless of any

suspension of such imprisonment) is at least 5 years, or any attempt or

-7-

new enhanced penalties.

Second, in the Immigration Act of 1990 (1990 Act),

Congress again addressed the deportation of aggravated

felons and their punishment for illegal reentry. Section

602 of the 1990 Act amended 8 U.S.C. § 1251 to provide

specifically that conviction of an aggravated felony was

grounds 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 apply

to deportation proceedings for which notice was provided

to the alien before March 1, 1991. Pub. L. No. 101-649,

§ 602(d), 104 Stat. 4978, 5082 (1990).

Section 501 of the 1990 Act also substantially

expanded the definition of "aggravated felony" to include

not only any drug trafficking crime under § 924(c)(2) but

also "any illicit trafficking in any controlled substance

(as defined in section 102 of the Controlled Substances

Act" as well as certain other money laundering and

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).4
conspiracy to commit any such act. Such term applies to offenses

described in the previous sentence whether in violation of Federal or State

law and also applies to offenses described in the previous sentence in

violation of foreign law for which the term of imprisonment was

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 unauthorized

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 effective date provision in the 1990 Act stated

that it would "apply to offenses committed on or after

the date of the enactment of this Act [November 29,

1990]" except that the amendment expanding the definition

of aggravated felony to include illicit trafficking in

any controlled substance would "be effective as if

included in the enactment of section 7342 of the AntiDrug Abuse Act of 1988." Pub. L. No. 101-649, § 501(b),

104 Stat. 4978, 5048(1990). 

Thus, after the 1988 and 1990 amendments, a

controlled substances offense, such as the one BacaValenzuela had been convicted of in 1987, was classified

as an aggravated felony and the maximum penalty for

illegal reentry 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 BacaValenzuela was imprisoned. Effective November 1, 1991,

the United States Sentencing Commission amended

Sentencing Guideline Section 2L1.2 by the addition of a

new subsection (b)(2), providing for a 16 level increase

in the base offense level of a defendant who illegally
U.S.S.G. § 2L1.2 provides a base offense level of eight for illegal reentry into 6

the United States. Subsection (b) provides:

(b) Specific Offense Characteristics. If more than one applies, use the

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) If 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 of

aggravated felony in 18 U.S.C. § 1101(a)(43) and provide in relevant part that an

"aggravated felony" includes "any illicit trafficking in any controlled substance (as

defined in 21 U.S.C. § 802), including any drug trafficking crime as defined in 18

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).6
 Title 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 release

from prison neared, the INS canceled its 1987 Order to

Show Cause and substituted a new Order to Show Cause

citing the enhanced penalties provided in the amended

Immigration and Nationality Act for aliens convicted of

an "aggravated felony." Then, upon his release from

prison in 1992, Baca-Valenzuela was detained by the INS

pending deportation. On October 14, 1992, an immigration

judge ordered Baca-Valenzuela deported pursuant to

Section 241(a)(2)(A)(iii) of the Immigration and

Nationality Act due to his status as an alien with a

prior conviction for an aggravated felony. 8 U.S.C.

§1251(a)(2)(A)(iii). Baca-Valenzuela did not file a

direct appeal of the deportation order and was then

deported.

In 1995, Baca-Valenzuela was arrested in Cooper

County, Missouri, and charged under Missouri state law

with possession of a controlled substance. On March 13,

1995, Baca-Valenzuela was convicted of that offense and

fined $5000.00. That same day, Missouri officials turned

him over to the custody of the INS.

On March 29, 1995, Baca-Valenzuela was indicted by a

federal grand jury in the Western District of Missouri on

one count of reentering the United States after having

been deported subsequent to an aggravated felony, in

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) prior to his reembarkation at a place outside the

United States or his application for admission from foreign

contiguous territory, the Attorney General has expressly consented

to such alien's reapplying for admission; or (B) with respect to an

alien previously excluded and deported, unless such alien shall

establish 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 section, in the case of any alien

described in such subsection --

(1) whose deportation was subsequent to a conviction for

commission or three or more misdemeanors involving drugs,

crimes against the person, or both, or a felony (other than an

aggravated felony), 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 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 (a), (b) (1997) (emphasis supplied).

We have previously held that Section 1326(b) does not state the elements of a

separate crime but is rather a sentence enhancement provision setting forth greater

punishment for offenders violating Section 1326(a) who have 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 moved to dismiss the indictment. He

raised several claims challenging the application of

the Immigration and Nationality Act, as amended, to his
The 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

differently, we believe that the four claims identified here better subsume the actual

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 all

8

challenges to the indictment. The district court adopted

the recommendations of the magistrate judge and overruled

the motion to dismiss the indictment. Baca-Valenzuela

then pleaded guilty but reserved the right to pursue his

legal challenges to the conviction and sentence on

appeal. 

On this appeal, Baca-Valenzuela raises four related

challenges to his conviction and sentence for the illegal

reentry offense. First, Baca-Valenzuela contends that 9

both his 1992 deportation and his 1995 conviction are

invalid as a matter of statutory construction. He says

that when he committed the underlying drug offense in

1987 that crime was not an "aggravated felony" and by its

terms the 1990 statute did not intend retroactive

application of the enhanced penalties for aggravated

felonies. Second, appellant argues that, even assuming

the 1990 statute meant to include in the expanded

definition of "aggravated felony" crimes committed before

its enactment, the statute as applied to him violates

the ex post facto clause of the Constitution. Third,

appellant urges that the 16 level upward enhancement of

his sentence was invalid, because he was convicted only

of "aiding and abetting" the drug offense rather than

commission of the offense as a principal. Fourth,

appellant claims that he was entitled to a downward
-13-

departure in sentencing on grounds that the retroactive

application of the sentence enhancement for prior

conviction of an "aggravated felony" was not a factor the

Sentencing Commission had taken into account when

drafting the Sentencing Guidelines.
-14-

Analysis

Statutory Construction of the Aggravated Felony Provision

Baca-Valenzuela first contends that in drafting the

Immigration and Nationality Act Congress did not intend

to treat crimes committed before the 1988 and 1990

amendments as aggravated felonies for purposes of

enhanced punishment. He argues that his 1987 drug

offense was not an aggravated felony at the time of its

commission or his conviction because no such category of

offenses then existed. Further, Baca-Valenzuela

maintains that there is no evidence that Congress

intended retroactive application of the aggravated felony

provision. Accordingly, argues Baca-Valenzuela, his 1992

deportation 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 Immigration and Nationality Act, as amended -- we

review the district court's decision de novo. United

States v. Crawford, No. 96-2808, slip op. at 18 (8th Cir.

June 23, 1997). 

The baseline for interpreting a statute is always the

"language of the statute itself," United States v.

James, 478 U.S. 597, 604 (1986), for we "must give

effect to the unambiguously expressed intent of

Congress." Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 843 (1984). 

Baca-Valenzuela was convicted in 1987 of aiding and

abetting the possession of cocaine with intent to

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 the

time of conviction for which Baca-Valenzuela was

sentenced to ten years in prison. Baca-Valenzuela's 1995

sentence for illegal reentry was enhanced on the theory

that this 1987 conviction constituted "illicit

trafficking in [a] controlled substance, as defined in

Section 802 of Title 21," under the definition of

"aggravated felony" in 8 U.S.C. § 1101(a)(43) as it had

been expanded in 1990.
SEC. 501. AGGRAVATED FELONY DEFINITION.

10

(a)IN 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 paragraph

(42),

(2) by inserting "any illicit trafficking in any controlled substance

(as defined in section 102 of the Controlled Substances Act),

including" after "murder,",

(3) by inserting after "such title," the following: "any offense

described in section 1956 of title 18, United States Code (relating

to laundering of monetary instruments), or any crime of violence

(as defined in section 16 of title 18, United States Code, not

including a purely political offense) for which the term of

imprisonment imposed (regardless of any suspension of such

imprisonment) is at least 5 years, ",

(4) by striking "committed within the United States",

(5) by adding at the end the following: "Such term applies to

offenses described in the previous sentence whether in violation of

Federal or State law.", and

(6) by inserting before the period of the sentence added by

paragraph (5) the following: "and also applies to offenses described

in the previous sentence in violation of foreign law for which the

term of imprisonment was completed within the previous 15

years".

(b) EFFECTIVE DATE. -- The amendments made by subsection (a) shall

apply to offenses committed on or after the date of the enactment of this

Act [November 29, 1990], except that the amendments made by

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 statutory

interpretation in this case is the language of Section

501 of the 1990 amendment. In particular, Section

10

501(a)(2) provided that the definition of an aggravated

felony included "any illicit trafficking in any
-17-

controlled substance." In addition, Congress stated in

Section 501(b) that for the new offenses added in 1990 to

the list of aggravated felonies in Section 501(a) --

money laundering 
-18-

and crimes of violence -- only those committed after the

effective date of the 1990 Act could serve to enhance a

sentence for illegal reentry. However, Section 501(b)

specifically provided with respect to the drug offenses

in paragraph (a)(2) that the 1990 amendments were

"effective as if included in the enactment of section

7342 of the Anti-Drug Abuse Act of 1988." 

Thus, Congress stated explicitly that a money

laundering offense or a crime of violence, for example,

could not be the basis for an aggravated felony sentence

enhancement unless committed on or after November 29,

1990. For drug offenses, however, Congress provided an

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 to

determine its effective date (and by extension whether

drug offenses committed before 1988 are aggravated

felonies). Congress did not specifically state in the

1988 Act whether crimes committed before its passage

could be counted as "aggravated felonies." Section 7342

of the 1988 Act defined "aggravated felony" as meaning

"murder, any drug trafficking crime . . . , or any

illicit trafficking in any firearms or destructive

devices . . . ." But Section 7342 did not specify when

such offenses must have occurred to constitute an

aggravated felony.

Despite the absence of an explicit effective date

provision in the "aggravated felony" definition, we

believe it is clear by necessary implication from the

language and design of the Act as a whole that Congress

intended to include drug convictions prior to 1988.
-19-

 

First, the language of several substantive provisions

of the 1988 Act which make use of the term "aggravated

felony" would not make sense unless the term included

pre-enactment convictions. And, it is, of course,

axiomatic that we read the language of a statute so as to

give effect to each word enacted by Congress. Pelofsky

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 definition 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 would apply "to any aid or assistance

which occurs on or after the date of the enactment of this Act." Pub. L. No. 100-690,

§ 7346, 102 Stat. at 4471 (1988). As with Section 7345, it would make little sense for

this substantive liability provision to apply immediately upon enactment unless the

aggravated felonies to which it referred included those occurring before enactment.

Similarly, Section 7349 provided a 10 year ban on reentry into the United States of

aliens convicted of an aggravated felony. Congress expressly stated that this provision

-20-

For example, we note that the 1988 Act provided that

the enhanced penalties in 8 U.S.C. § 1326 for persons

convicted of illegal reentry after deportation subsequent

to an aggravated felony should "apply to any alien who

enters, attempts to enter, or is found in, the United

States on or after the date of the enactment of this

Act." Pub. L. No. 100-690, § 7345(b), 102 Stat. at

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 (without consent

after deportation subsequent to conviction for an

aggravated felony), it seems clear that the aggravated

felonies referred to must include those occurring before

November 18, 1988. It would have been impossible for an

alien entering, attempting to enter, or being found in

the United States on that date to have a prior conviction

for an aggravated felony if such aggravated felonies

included only offenses committed after that date. Thus,

the only interpretation of the definition of aggravated

felony, 8 U.S.C. § 1101(a)(43), which would also give

meaningful effect to this substantive provision employing

the term, 8 U.S.C. § 1326(b), is that "aggravated

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 of the other substantive sections

of the 1988 Act which used 
In two other sections of the 1988 Act a substantive provision regarding the

12

deportation of aliens who commit an aggravated felony is explicitly limited to

prospective crimes only. See §§ 7344(b) ("Grounds of Deportation") & 7347(c)

("Expedited Deportation 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 of

aggravated felonies "on or after the date of the

enactment." Such provisions indicate that Congress knew

how -- when it chose -- to restrict the disabilities

arising from conviction of "aggravated felonies" to

prospective crimes 

only. Moreover, such express limitation to future

offenses would have been unnecessary and redundant if the

definition of "aggravated felony" did not already include

convictions prior to the effective date of the Act. 

For example, Section 7343 of the 1988 Act provided

that an alien convicted of an "aggravated felony" would

be immediately deportable. However, Section 7343 also

stated that it applied only to an "alien who has been

convicted, on or after the date of the enactment of this

Act, of an aggravated felony." If, as Baca-Valenzuela

contends, the term aggravated felony as defined in 8

U.S.C. § 1101(a)(43) was meant by Congress to be

restricted to post-enactment crimes, then that portion of

Section 7343 making aliens subject to deportation only

for prospective offenses would be redundant.12

Thus, it seems clear from the language of the 1988

Act and its design that "aggravated felony" as defined

included crimes for which an alien was convicted prior to

November 18, 1988. This is the only interpretation of
-23-

the statutory language which will both give effect to all

the words Congress chose and recognize Congress'

decisions to place temporal limitations on the

effectiveness of some substantive provisions using the

term "aggravated felony" but not others. 

This reading of the statute is consistent with that

of the other Courts of Appeals which have faced this

issue. For example, in United States v. ArandaHernandez, 95 
-24-

F.3d 977, 981-83 (10th Cir. 1996), cert. denied, 117 S.

Ct. 1314 (1997), an alien -- deported after conviction of

a drug offense in 1984 -- was rearrested in 1994 and

charged with illegal reentry after deportation subsequent

to conviction of an aggravated felony. He argued that

under the effective dates of the 1988 and 1990

amendments to the Immigration and Nationality Act his

1984 conviction could not be an aggravated felony. The

Tenth Circuit disagreed and held that the aggravated

felony enhancement in Section 1326(b) applied to all

covered drug offenses, regardless of the date committed.

 Similarly, in United States v. Adkins, 102 F.3d 111

(4th Cir. 1996), the Fourth Circuit upheld a conviction

for reentry after deportation subsequent to an aggravated

felony where the underlying drug offense occurred in

January 1988, prior to the enactment of the 1988 and 1990

amendments. Accord, United States v. Troncoso, 23 F. 3d

612 (4th Cir. 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.3d

1517 (3d Cir. 1996) (crimes are aggravated felonies for

purposes of 8 U.S.C. § 1182(c) waiver of deportation

"regardless of the conviction date"). 

Our conclusion that Baca-Valenzuela's 1987 conviction constitutes an aggravated

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. Dec. 492 (1992), for example, the Board held that an alien's request for

discretionary waiver of inadmissibility under 8 U.S.C. § 1182(c) must be denied

because such relief was barred for all aggravated felonies. The Board held that the

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 GomezRodriquez a unanimous court sitting en banc held that an alien's indictment for illegal
But cf. United States v. Campbell, 94 F.3d 125 (4th Cir. 1996), cert. denied,

13

1997 WL 274271 (1997), where the Fourth Circuit explicitly disagreed with the Ninth

Circuit and held that an enhanced sentence for illegal reentry applied where the

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 the

district court's decision that the appellant has failed to satisfy the required threshold to

raise the same claims in 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 1326

prosecution, the defendant may collaterally attack the underlying deportation

proceedings and prevent the government from using them as a basis for conviction if

(1) an error in the deportation proceedings rendered the proceedings fundamentally

unfair in violation of due process, and (2) the error functionally deprived the alien of

the right to judicial review.") (citing United States v. Mendoza-Lopez, 481 U.S. 828,

840 (1987)). Baca-Valenzuela cannot establish fundamental unfairness because he was

-26-

reentry after deportation subsequent to conviction for an aggravated felony must be

dismissed where the underlying felony was a crime of violence -- assault with a deadly

weapon -- which occurred before the definition of aggravated felony was expanded to

include such crimes. The court relied explicitly on the language of the 1990

13

amendment restricting the definition of aggravated felony to "offenses committed on

or after the date of the enactment" of the 1990 Act for those new crimes (such as

crimes 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 other crimes included in the

definition of aggravated felony (such as drug crimes), for which the 1990 Act provides

no explicit limitation to prospective offenses only, the Act includes such offenses,

whenever committed.

In sum, we conclude that based on the language of the

Immigration and Nationality Act, as amended in 1988 and

1990, Congress intended Baca-Valenzuela's 1987 drug

conviction to be treated as an aggravated felony for

purposes of enhanced punishment under Section 1326(b).14
clearly deportable for his prior conviction of a felony even if his offense did not

constitute an aggravated felony. Moreover, he has not established that the error, if any,

had the 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 statute

does apply to his conduct it constitutes an invalid ex

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 the

punishment for criminal acts." California Dep't of Corrections v. Morales, 115 S. Ct.

1597, 1601 (1995). And, we have held that an ex post facto law is one that either

makes criminal conduct that was legal when done or inflicts greater punishment for an

offense than the law when the offense was committed. United States v. Crawford, No.

96-2808, slip op. at 12. 

Baca-Valenzuela's ex post facto claim is based on the

argument that he is being punished for 1987 conduct,

under laws effective in 1988 and 1990. This contention

rests on a misinterpretation of Section 1326. Our

court -- as well as numerous other courts that have

addressed the issue -- has indicated that the punishments

set forth in Section 1326 are for the offense of

reentry (after deportation and without consent from the

Attorney General) not for the underlying criminal

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

See also United States v. Saenz-Forero, 27 F.3d 1016,

1020 (5th Cir. 1994); United States v. Arzate-Numez, 18

F.3d 730, 735 (9th Cir. 1994). Accordingly, BacaValenzuela was punished for his recent illegal reentry

of the United States -- sometime between his

deportation in 1992 and his arrest in Missouri 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 sentence

enhancement provision providing for greater punishment

for certain offenders committing the instant offense --

reentering or being found in the United States after

deportation subsequent to an aggravated felony -- it

plainly is not an ex post facto law. As we have said,

"[s]o long as the actual crime for which a defendant is

being sentenced 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 (8th Cir. 1996)

(quoting United States v. Allen, 886 F.2d 143, 146 (8th

Cir. 1989)), cert. denied, 116 S. Ct. 2570 (1996). 

Despite these clear principles, Baca-Valenzuela

argues here that Section 1326(b) is an ex post facto law

under the reasoning of United States v. Davis, 936 F.2d

352 (8th Cir. 1991), cert. denied, 503 U.S. 908 (1992).

This argument is misplaced. In Davis the defendant was

convicted of a felony. Later a new statute was passed

barring felons from carrying firearms for ten years after

their release from prison. The question was whether this

new bar on firearms possession constituted an ex post

facto law as applied to a person convicted of a felony

prior to the enactment of the firearms statute. We

concluded it was a forbidden ex post facto law, because,

as applied, the new statute plainly increased the

punishment for a past offense. 

That is not the case here. Like other recidivist and

career offender provisions in current law, Section

1326(b) imposed on Baca-Valenzuela a greater punishment

because he had previously been convicted and deported.

However, there is no doubt here that the crime BacaValenzuela was punished for was his illegal reentry and
-31-

residence in the United States in 1992-1995 and not his

drug activities 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 on

grounds that he should not have received the 16 level

offense enhancement for an "aggravated felony" because he

was convicted of "aiding and abetting" cocaine possession

rather than commission of the crime as a principal.
-32-

Section 2L1.2 of the Sentencing Guidelines provides

that persons convicted of illegal reentry into the United

States shall receive a base offense level of 8. Then

subsection (b) provides that if the defendant was

previously deported after conviction for an aggravated

felony his base offense level should be increased by 16

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 an

aggravated felony, and deducted 3 for acceptance of

responsibility for a total offense level of 21. With

Baca-Valenzuela's criminal history category of III, that

offense level corresponded to a sentence of 46-57 months

and Baca-Valenzuela was sentenced to 51 months in prison.

Baca-Valenzuela contended in the district court that

the 16 level enhancement for prior conviction of an

aggravated felony was in error, because the crime of

which he was convicted -- "aiding and abetting" the

possession of cocaine with intent to distribute -- is not

specifically listed as an aggravated felony in either the

statute, 8 U.S.C. § 1101(a)(43), or the applicable

guideline, U.S.S.G. § 2L1.2(b)(2). The district court,

however, rejected this argument finding that under wellestablished principles of federal criminal law conviction

of aiding and abetting an offense is the same as

conviction of the offense as a principal. 

We agree with the reasoning of the district court.

A fundamental theory of American criminal law is that

there is no offense of aiding and abetting or accomplice

liability as such. Instead, accomplice liability is

merely a means of determining which persons were closely

enough related to the underlying offense to be prosecuted
-33-

and convicted of that offense. Whether one is convicted

as a principal or as an accomplice/aider and abettor, the

crime of which he is guilty is the same: whatever is the

underlying offense. United States v. Simpson, 979 F.2d

1282, 1285 (8th Cir. 1992) (Magill, J.), cert. denied,

507 U.S. 943 (1993).

Here, Baca-Valenzuela's role in the 1987 drug offense

was apparently such that the prosecutor chose to charge

him with possession of cocaine with intent to distribute,
-34-

21 U.S.C. § 841(a)(1), as an aider and abettor under 18

U.S.C. § 2. Although convicted on a theory of accomplice

liability, Baca-Valenzuela was nevertheless convicted 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 received enhanced

punishment based on this prior conviction. See United

States v. Mitchell, 23 F.3d 1, 2-3 (1st Cir. 1994)

(aiding and abetting a crime of violence is the same as

commission of the crime as a principal for purposes of

enhanced sentence). Simpson, 979 F.2d at 1285 (same).

The one case cited by Baca-Valenzuela as supporting

his claim -- that Congress did not intend to include

aiding and abetting as an aggravated felony -- is United

States v. Mendoza-Figueroa, 28 F.3d 766 (8th Cir. 1994).

In that case a panel of this court held that where the

operative statute and sentencing guideline did not

specifically include conspiracy as a basis for an

enhanced punishment, Congress did not intend to cover

conspiracies. The panel rejected the government's

argument that the statutory language listing substantive

drug offenses should be read as implicitly including

conspiracy as well. However, the panel opinion was

vacated and the court en banc held that conspiracy to

distribute marijuana was a controlled substance offense

for purposes of enhanced punishment. Unitied States v.

Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995). In any

event, Mendoza-Figueroa does not support the further

proposition that such a statute should not be read to

include aiding and abetting. Unlike accomplice

liability, conspiracy is plainly a separate criminal

offense; a person is guilty of the crime of conspiracy

not of 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 concluded

that Baca-Valenzuela had been convicted of a crime

involving "illicit trafficking in any controlled

substance (as defined in 21 U.S.C. § 802)" under

Sentencing Guideline Section 2L1.2. This crime is within

the definition of aggravated felony in both the statute

and the sentencing guideline and thus Baca-Valenzuela

properly received an enhanced sentence based on his prior

commission of the aggravated felony.
-36-

Downward Departure

Finally, Baca-Valenzuela contends that the district

court erred in denying his request for a downward

departure in his sentence. Baca-Valenzuela's theory was

that in drafting the Sentencing Guidelines the Sentencing

Commission did not anticipate that the sentence

enhancement for an "aggravated felony" would be

interpreted to include crimes committed before the

sentence enhancement became law. Thus, he argued, a

downward departure was required to avoid both unintended

consequences and injustice. This argument is misplaced.

A district court may depart from a guidelines

sentence if the court "finds that there exists an

aggravating or mitigating circumstance of a kind, or to

a degree, not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines that

should result in a sentence different from that

described." 18 U.S.C. § 3552(b). According to the

Supreme Court's recent decision in Koon v. United States,

116 S. Ct. 2035, 2046 (1996), the issue is whether

"certain aspects of the case [are] unusual enough for it

to fall outside he heartland of cases in the

Guideline[s]."

As we have recently held, "[w]hen a district court

correctly understands that it has the authority to depart

on a particular basis from the guidelines, the 'court's

discretionary decision not to depart . . . is

unreviewable on appeal absent an unconstitutional

motive.'" United States v. Hernandez-Reyes, No. 96-3548,

slip op. at 3 (8th Cir. June 11, 1997), quoting, United

States v. Field, No. 96-1590, slip op. at 9 (8th Cir.

April 7, 1997). Baca-Valenzuela has certainly shown no
-37-

motive for the district court's rejection of his request

for downward departure other than that his request was

without legal merit.

Here, we do not believe that Baca-Valenzuela's

substantive argument -- that the Sentencing Commission

did not adequately take into account how the aggravated

felony enhancement might be applied to a case like this

-- has merit. But, in any event, it is clear that the

district court fully understood the argument BacaValenzuela was 
The court rejected Baca-Valenzuela's request for a downward departure,

15

saying:

I see no basis for a request for a downward departure because it is clear

to me that the Sentencing Commission contemplated the term aggravated

felony and included it in its penalty structure for unlawfully entering or

remaining in the United States, and that for the reasons that we've been

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

basis -- I mean, I think to give this defendant a downward departure

because the offense that is determined to be an aggravated felony

occurred in the past really makes no sense. It doesn't, the Sentencing

Commission clearly contemplated that, as did Congress.

-38-

making and rejected it. In such circumstances, we

15

decline to upset the well-reasoned decision of the

sentencing judge.

Accordingly, for the reasons stated herein, the

judgment of the district court is in all respects

affirmed.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT