1Section 1326 punishes "any alien who ... has been arrested

and deported ... and thereafter ... enters, attempts to enter, or

is at any time found within the United States."

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-3556

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERNANDO SAENZ-FORERO,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

(July 20, 1994)

Before JOHNSON, BARKSDALE and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-appellant Hernando Saenz-Forero pleaded guilty on

February 3, 1993 to illegally attempting to re-enter the United

States after having been previously arrested and deported. 8 U.S.C.

§ 1326.1 He appeals his 41-month sentence, claiming (1) that the

trial court violated the Ex Post Facto Clause of the United States

Constitution by using a 1985 conviction to enhance his sentence;

and (2) that he received ineffective assistance of counsel. Finding
 

2"In the case of any alien [who attempts to re-enter the

United States after having been previously arrested and deported]

whose deportation was subsequent to a conviction for commission

of an aggravated felony, such alien will be fined under [Title

18], imprisoned not more than 15 years, or both." 8 U.S.C. §

2

no basis for reversal or modification of Saenz-Forero's sentence,

we AFFIRM.

FACTS AND PROCEDURAL BACKGROUND

On December 21, 1992, Saenz-Forero arrived at the New Orleans

International Airport aboard a flight from San Jose, Costa Rica. He

presented a falsified passport to immigration authorities. Upon

questioning, he waived his Miranda rights and admitted his true

identity. He was then arrested on a charge of using a false

passport in violation of 18 U.S.C. § 1543. Subsequent checks of

immigration records revealed that Saenz-Forero had previously been

arrested and deported from the United States on September 10, 1986,

after a 1985 conviction for conspiracy to possess and distribute

cocaine. After his deportation in 1986, Saenz-Forero did not apply

for or receive permission to re-enter the United States.

Saenz-Forero was indicted on two counts: (1) attempting to reenter the United States without the permission of the Attorney

General after having been arrested and deported; and (2) willful

use of an altered passport. He pleaded guilty to the re-entry

count, and the government moved to dismiss the passport count in

accordance with the plea agreement.

Saenz-Forero was sentenced on May 19, 1993. The trial court

used his prior drug conviction to increase his sentence under 8

U.S.C. § 1326(b)(2)2 and the corresponding sentence enhancement
1326(b)(2).

Mere re-entry after deportation subjects the defendant only

to a two-year maximum sentence under § 1326(a). Entry after

conviction for a non-aggravated felony subjects a defendant to a

maximum term of five years under § 1326(b)(1). We have held that

§ 1326(b)(2), which subjects prior aggravated felons to a term of

up to 15 years, is a sentence enhancement provision rather than

an independent criminal offense. United States v. Vasquez-Olvera,

999 F.2d 943, 945 (5th Cir. 1993)(holding that the prior

aggravated offense is not an element of the crime and does not

have to be alleged in the indictment), cert. denied, 114 S.Ct.

889 (1994); Accord, United States v. Crawford, 18 F.3d 1173, 1178

(4th Cir. 1994); but see United States v. Campos-Martinez, 976

F.2d 589, 591-92 (9th Cir. 1992)(holding that subsections (a) and

(b) constitute separate crimes).

 

3U.S.S.G. § 2L1.2 sets a base offense level of 8 for

"unlawfully entering or remaining in the United States," then

provides in § 2L1.2(b)(2) that "[i]f the defendant previously was

deported after a conviction for an aggravated felony, increase by

16 levels."

 

4For a discussion of the different functions of §

2L1.2(b)(2) and § 1326(b)(2), see United States v. Forbes, 16

F.3d 1294, 1300 & n.9 (1st Cir. 1994).

3

provision in the United States Sentencing Guidelines.3 SaenzForero's 1985 conviction is an "aggravated felony" for the purpose

of § 2L1.2(b)(2) and § 1326(b)(2), according to both Guideline and

statutory definitions in effect in 1992 when he attempted to reenter the United States. 8 U.S.C. § 1101(a)(43); U.S.S.G. §

2L1.2(b)(2), comment.(n.7)(Nov. 1992). Cocaine is a "controlled

substance" under 21 U.S.C. § 806(6), and conspiring to distribute

cocaine is a "drug trafficking crime" as defined in 18 U.S.C. §

924(c)(2).4

After the trial court applied the 16-level increase called for

in § 2L1.2(b)(2), as well as a three-level decrease for acceptance

of responsibility, Saenz-Forero's total offense level was 21. His

criminal history category was II, resulting in a sentencing range
4

of 41 months to 51 months. The trial court chose the bottom of the

range, sentencing Saenz-Forero to 41 months of incarceration.

DISCUSSION

Saenz-Forero, who brings this appeal pro se, challenges his

sentence with two issues on appeal. (1) Did the trial court's

enhancement of Saenz-Forero's sentence under 8 U.S.C. § 1326(b)(2)

and U.S.S.G. § 2L1.2(b)(2) for his 1985 aggravated felony

conviction violate the Ex Post Facto Clause of the Constitution?

(2) Was Saenz-Forero denied effective assistance of counsel?

Issue 1: Ex Post Facto Argument

Saenz-Forero, raising an issue of first impression in the

Fifth Circuit, alleges an ex post facto violation because his drug

conviction -- the "aggravated felony" used to enhance his sentence

-- occurred in 1985, before such a drug conviction was classified

as an "aggravated felony," and before the enactment of the

sentencing enhancement provisions in 18 U.S.C. § 1326(b)(2) and

U.S.S.G. § 2L1.2(b)(2). The relevant dates are set out below:

January 30, 1985 - Saenz-Forero is convicted of conspiring to

possess and distribute cocaine.

September 10, 1986 - Saenz-Forero is arrested and deported from the

United States.

November 18, 1988 - 8 U.S.C. § 1326 is amended effective this date

to provide for a 15-year maximum sentence for a defendant who

attempts to illegally re-enter the United States after having been

previously deported following an aggravated felony conviction. The

amending legislation also added a new statutory provision, 8 U.S.C.
5

§ 1101(a)(43), which defines "aggravated felony" as including any

drug trafficking crime.

November 1, 1991 - U.S.S.G. § 2L1.2 is amended effective this date

by the addition of a new subsection (b)(2), providing for a 16-

level increase in the base offense level of a defendant who

attempts to illegally re-enter the United States after having been

previously deported following an aggravated felony conviction. The

amendment to § 2L1.2 also added Application Note 7, which defines

"aggravated felony" to include any illicit trafficking in a

controlled substance.

December 21, 1992 - Saenz-Forero, using an altered passport,

attempts to illegally re-enter the United States and is arrested.

January 7, 1993 - Saenz-Forero is indicted.

February 3, 1993 - Saenz-Forero pleads guilty to a violation of 8

U.S.C. § 1326(b)(2).

May 19, 1993 - Saenz-Forero is sentenced.

Saenz-Forero, in his pro se brief, argues that "the aggravated

felony statute did not exist at the time of appellant's original

conviction," and that his 1985 conviction occurred "before the

statute declared drug convictions to be conviction of an aggravated

felony." He asks the Fifth Circuit to "remand for re-sentencing in

compliance with the law in effect at the time of appellant's

original conviction, thus, remanding for removal of the 16-level

enhancement." 

Saenz-Forero's argument seems to be that the district court's

application to him of the harsher penalties in 8 U.S.C. §
 

5Saenz-Forero raises this issue for the first time on

appeal, so our review must be for "plain error" under FED. R.

CRIM. P. 52(b) and United States v. Olano, 113 S.Ct. 1770, 1777-

78 (1993). Under Olano, a federal appellate court may not review

an unpreserved claim of error unless: (1) there was an actual

error; (2) the error was "plain," i.e., clear under current law;

and (3) it affected the defendant's "substantial rights." Even

when all three prongs are met, Olano holds, the appellate court

has discretion as to whether to correct the error. We hold that

there was no error in Saenz-Forero's sentence, so we reach only

the first step of Olano.

6

1326(b)(2) and U.S.S.G. § 2L1.2(b)(2) violates the Ex Post Facto

Clause of the Constitution.5 U.S. CONST., art. I, § 9, cl. 3 ("No

... ex post facto Law shall be passed."). An ex post facto law is

a criminal or penal measure which is retrospective and is

disadvantageous to the offender because it may impose greater

punishment. United States v. Leonard, 868 F.2d 1393, 1399 (5th Cir.

1989), overruled on other grounds by United States v. Taylor, 495

U.S. 575, 579 & n.2 (1990), and cert. denied, 496 U.S. 904 (1990).

A central concern of the ex post facto prohibition is to assure

that legislative acts "give fair warning of their effect and permit

individuals to rely on their meaning until explicitly changed."

Miller v. Florida, 482 U.S. 423, 430 (1987)(quoting Weaver v.

Graham, 450 U.S. 24, 28-29 (1981)). We have held that a statute

violates the Ex Post Facto Clause if the statute (1) punishes as a

crime an act previously committed which was not a crime when it was

done; (2) increases the punishment for a crime after the crime is

committed; or (3) deprives a criminal defendant of a defense that
7

was legally available at the time the act was committed. United

States v. Brechtel, 997 F.2d 1108, 1113 (5th Cir.), cert. denied,

114 S.Ct. 605 (1993).

This Circuit has not yet addressed the precise issue SaenzForero raises. But a recent First Circuit case is squarely on point

against his ex post facto argument. United States v. Forbes, 16

F.3d 1294, 1302 (1st Cir. 1994). In addition, this Circuit and the

Supreme Court have upheld recidivist statutes in the face of

similar ex post facto challenges. Leonard, 868 F.2d at 1399-1400

(citing Gryger v. Burke, 334 U.S. 728, 732 (1948)); Perkins v.

Cabana, 794 F.2d 168, 169 (5th Cir.), cert. denied, 479 U.S. 936

(1986).

In Leonard, the defendant claimed that his sentence could not

be enhanced (pursuant to a recidivist statute giving a harsher

sentence to offenders with three prior convictions for certain

felonies) due to convictions that pre-dated the enactment of the

recidivist statute. We upheld his conviction:

"Leonard's argument reflects a misunderstanding as to the

function of his [prior] convictions under the statute. Neither

his conviction nor the sentence he complains of punishes him

for these prior offenses. Those offenses merely led to an

enhanced sentence for his new crime. Leonard pled guilty to

[the new crime] on May 26, 1988, after the effective date of

[18 U.S.C.] § 924(e). Section 924(e) is not retrospective

because it bases enhancement of his sentence upon convictions

which preceded its enactment."

Leonard, 868 F.2d at 1399-1400 (holding that § 924(e) did not
 

6Leonard was overruled by the United States Supreme Court on

an unrelated point. United States v. Taylor, 495 U.S. 575, 579 &

n.2 (1990). 

8

violate the Ex Post Facto Clause).6 We also upheld a Mississippi

recidivist statute against a similar constitutional challenge in

Perkins v. Cabana, 794 F.2d 168, 169 (5th Cir.), cert. denied, 479

U.S. 936 (1986).

"Perkins argues that [Miss. Code Ann.] § 99-19-81 is an

unconstitutional ex post facto law. He asserts that the law

impermissibly applies to convictions that occurred as many as

ten years before the effective date of the law, and that the

requirement of the maximum possible sentence for the habitual

offender impermissibly increases the punishment for the crime

after its commission.

This retroactivity argument misses the mark. The statute

defines and fixes the punishment for future felony offenses.

That it does so in terms of past offenses does not punish or

increase the punishment for those past offenses. The State has

done no more than classify felony recidivists in a different

category for punishment purposes than the category provided for

first felony offenders. No person is exposed to the increased

penalty unless he commits a felony after the enactment."

Perkins, 794 F.2d at 169. The United States Supreme Court similarly

held that a recidivist statute was not an unconstitutional ex post

facto law even though the prior offense, which classified the

accused as a habitual offender, occurred prior to the effective

date of the recidivist statute. Gryger v. Burke, 334 U.S. 728, 732

(1948)(upholding recidivist statute against ex post facto

challenge).

In this case, Saenz-Forero is asserting essentially the same

argument that we rejected in Perkins and Leonard, and that the

Supreme Court rejected in Gryger. And, like the defendants in those

cases, Saenz-Forero was convicted for conduct that occurred after

the enactment of the statute that criminalized his conduct and
9

established the punishment for that conduct. His attempt to reenter the United States in violation of 8 U.S.C. § 1326 occurred in

1992. The subsection setting a harsher sentence for prior

aggravated felons, 8 U.S.C. § 1326(b)(2), was enacted in 1988, and

the statutory definition of "aggravated felony" in 8 U.S.C. §

1101(a)(43) also was enacted in 1988. The applicable sentencing

guideline provision and definition, U.S.S.G. § 2L1.2(b)(2) &

comment (n.7), became effective on November 1, 1991, also before

Saenz-Forero's 1992 attempted re-entry. The fact that his prior

aggravated felony conviction occurred in 1985 does not change the

analysis, according to the case law upholding recidivist statutes.

Gryger, 334 U.S. at 732; Leonard, 868 F.2d at 1399-1400; Perkins,

794 F.2d at 169.

In addition, the First Circuit explicitly rejected SaenzForero's argument in United States v. Forbes, 16 F.3d 1294, 1302

(1st Cir. 1994). In that case, Jamaican citizen Robert George

Forbes was convicted under 8 U.S.C. § 1326 for unlawfully

attempting to re-enter the United States after having been

previously arrested and deported. Forbes appealed his sentence,

arguing that the use of prior convictions to trigger the aggravated

felony enhancement provision of § 1326(b)(2) violated the Ex Post

Facto Clause because the prior convictions occurred prior to the

enactment of § 1326(b)(2). The First Circuit rejected the ex post

facto argument and affirmed Forbes' sentence:

"Forbes cannot claim that subsection (b)(2) makes more onerous

the punishment for crimes committed before its enactment.

Forbes is being punished for the crime of unlawful re-entry, in

violation of § 1326. The enhancement provision increases the
 

7Generally, a claim of ineffective assistance cannot be

raised for the first time on direct appeal. United States v.

Bounds, 943 F.2d 541, 544 (5th Cir. 1991), cert. denied, 114

S.Ct. 135 (1993). We will address the claim, however, if the

record provides substantial details about the attorney's conduct.

Here, Saenz-Forero's ineffective assistance claim is related to

his ex post facto claim, so we will address it.

10

punishment for this crime. It does not affect the punishment

that Forbes received for the crimes committed prior to the

effective date of the Act. As the [Supreme Court in Gryger, 334

U.S. at 732,] observed, the fact that prior convictions that

[are] factored into a defendant's increased sentence preceded

the enactment of an enhancement provision does not render the

Act invalidly retroactive. Rather, an enhanced penalty is not

to be viewed as either a new jeopardy or additional penalty for

the earlier crimes. It is a stiffened penalty for the latest

crime, which is considered to be an aggravated offense because

[it is] a repetitive one."

Forbes, 16 F.3d at 1302 (citations omitted). The First Circuit also

upheld the decision of the sentencing court to increase Forbes'

base offense level by 16 levels pursuant to § 2L1.2(b)(2). Id. at

1301.

Guided by the First Circuit's persuasive reasoning in Forbes

-- as well as by the analogous precedent in Gryger, Perkins and

Leonard -- we hold that the enhancement of Saenz-Forero's sentence

under § 1326(b)(2) and § 2L1.2(b)(2) for his 1985 aggravated felony

conviction did not violate the Ex Post Facto Clause.

Issue 2: Ineffective Assistance Claim

Saenz-Forero also argues that he was denied effective

assistance of counsel because his attorney did not object to the

16-level increase.7 To prevail on this claim, Saenz-Forero must

demonstrate that his attorney's performance was deficient and that

the deficient performance prejudiced his defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). To establish prejudice under
 

8Cf. United States v. Rosalez-Orozco, 8 F.3d 198, 202 (5th

Cir. 1993)(evidence was sufficient to support conviction, so

defendant could not show Strickland prejudice from counsel's

failure to move for acquittal).

11

Strickland, a defendant must show that his attorney's errors were

so serious as to render the proceedings unreliable and

fundamentally unfair. Lockhart v. Fretwell, 113 S.Ct. 838, 844

(1993). As was discussed above, the sentencing court correctly

applied the 16-level enhancement under § 2L1.2(b)(2). Therefore, an

objection by Saenz-Forero's attorney on this point could not have

changed the sentence, and thus Saenz-Forero cannot demonstrate

prejudice under Strickland.

8 His sentence is AFFIRMED.