United States v. Simon ( 1994 )

USCA1 Opinion

          June 20, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No.  93-2235 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   LOUIS S. SIMON,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND


                     [Hon. Ernest C. Torres, U.S. District Judge]
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                                        Before

                                Boudin, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                                Stahl, Circuit Judge.
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            Louis S. Simon on brief pro se.
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            Edwin J. Gale,  United States  Attorney, and  Margaret E.  Curran,
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        Assistant United States Attorney, on brief for appellee.


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                 Per  Curiam.  In this  28 U.S.C.    2255 petition, Louis
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            Simon  advances  two challenges  to  the  calculation of  his

            sentence under  the Sentencing Guidelines.   Specifically, he

            alleges that a two-level enhancement under   2C1.1(b)(1) (for

            committing  an  offense involving  "more  than  one bribe  or

            extortion") and  a three-level  enhancement under    3B1.1(b)

            (for being a  "manager or leader"  of criminal activity  that

            "involved  five  or   more  participants  or  was   otherwise

            extensive")  were each  imposed in  violation of the  Ex Post

            Facto  Clause.   Assuming  arguendo  that  petitioner is  not
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            precluded from raising these issues in light of his waiver of

            the  right  to appeal  in his  plea  agreement, we  find each

            contention without merit.

                 The  latter argument  is  expressly  foreclosed by  this

            court's decision  in United States v.  Ruiz-Batista, 956 F.2d
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            351  (1st Cir.),  cert. denied,  113 S.  Ct. 105 (1992).   We
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            there held that, because the pre-1990 Introductory Commentary

            to Chapter 3, Part B could be deemed ambiguous, Amendment 345

            served  to  clarify this  passage  and so  could  properly be

            applied to offenses  occurring prior to November 1990.   See,
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            e.g.,  Isabel v.  United States,  980 F.2d  60, 62  (1st Cir.
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            1992)   ("clarifications"  of   Guidelines  may   be  applied

            retroactively; "substantive changes" may not).

                 The former argument is likewise unavailing.  Contrary to

            petitioner's premise, the  district court was  entitled under



















            the 1989  Guidelines to  consider "relevant conduct"  under  

            1B1.3  for purposes  of  determining whether  "more than  one

            bribe  or extortion" had occurred.1  At all relevant times,  

            1B1.3(a)  provided that, unless otherwise specified, specific

            offense  characteristics (of which  the two-level enhancement

            here  is  one) were  to  be determined  on the  basis  of the

            following:

                 solely with respect to  offenses of a character for
                 which   3D1.2(d) would require grouping of multiple
                 counts, all such acts  and omissions that were part
                 of the same  course of conduct or  common scheme or
                 plan as the offense of conviction. 

               1B1.3(a)(2).     The   district   court  determined   that

            petitioner's  other  extortionate  episodes  satisfied  these

            criteria; petitioner has  not disputed this  finding.  As  of

            1989,2  extortion (a    2C1.1  offense) was  included in  the

            list of offenses subject to grouping.  And Application Note 2

            to   1B1.3, as  it existed in 1989, specifically  stated that

            subsection  (a)(2) "applies  to offenses  of types  for which

            convictions  on  multiple counts  would  be grouped  together

            pursuant  to     3D1.2(d);   multiple  convictions  are   not
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            required."  (Emphasis  added).  The 1990 and  1991 amendments
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            1.  Although  the  words  "or  extortion"  were  added  to   
            2C1.1(b)(1) only after petitioner's extortionate  conduct had
            been committed,  see U.S.S.G., App. C, Amend.  367 (1991), he
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            has raised  no argument that this  provision is inapplicable.
            We therefore do  not address  the issue, other  than to  note
            that one court has applied Amendment  367 retroactively.  See
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            United States v. Loftus, 992 F.2d 793, 799 (8th Cir. 1993). 
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            2.  See U.S.S.G., App. C., Amend. 121 (1989). 
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            to Note  2, upon  which petitioner apparently  relies, served

            only to  reinforce this  interpretation.  See  U.S.S.G., App.
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            C.,  Amends.  309 &  389.   For  these reasons,  the district

            court's consideration  of relevant  conduct  for purposes  of

            applying the    2C1.1(b)(1) enhancement entailed no violation

            of the Ex Post Facto Clause.

                 Affirmed.
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