United States of America v. Dwight Bowley

NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-2781
UNITED STATES OF AMERICA
v.
DWIGHT BOWLEY
Appellant
On Appeal From the District Court
of the Virgin Islands, Division of St. Thomas
and St. John
(D.C. Crim. Action No. 04-cr-00169-1)
District Judge: Hon. Raymond L. Finch
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 7, 2006
BEFORE: McKEE, BARRY and STAPLETON,
Circuit Judges
(Opinion Filed: December 20, 2006)

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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Dwight Bowley contends that the District Court, in the course of
sentencing him to sixty months of incarceration, erred in calculating his guideline range.
Finding no error, we will affirm the judgment of the District Court
Appellant pled guilty to one count of unlawful re-entry after deportation in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). The applicable Guideline section, U.S.S.G.
§ 2L1.2 provides:
(a) Base Offense Level: 8
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully
remained in the United States, after –
(A) a conviction for a felony that is (i) a drug
trafficking offense for which the sentence
imposed exceeded 13 months; (ii) a crime of
violence; (iii) a firearms offense; (iv) a child
pornography offense; (v) a national security or
terrorism offense; (vi) a human trafficking
offense; or (vii) an alien smuggling offense,
increase by 16 levels;
(B) a conviction for a felony drug trafficking
offense for which the sentence imposed was 13
months or less, increase by 12 levels;

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(C) a conviction by an aggravated felony,
increase by 8 levels;
(D) a conviction for any other felony, increase
by 4 levels; or
(E) three or more convictions for misdemeanors
that are crimes of violence or drug trafficking
offenses, in crease by 4 levels.
Appellant acknowledges having a prior attempted robbery conviction that comes
within the scope of both subsection A and subsection C. He insists, however, that §
2L1.2 is ambiguous in this context, that the rule of lenity should apply, and, accordingly,
that the District Court’s 16 level enhancement was in error. We agree with the District
Court that § 2L1.2 unambiguously required it to “Apply the Greatest” and enhance by 16
levels.
The judgment of the District Court will be affirmed.

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