USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1473

UNITED STATES,

Appellee,

v.

MICHAEL P. FOSHER,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

_____________________

George F. Gormley, by appointment

__________________
John D. Colucci
_______________

of the court,

and Gormley & Colucci, P.C.

________________________

were on

with whom

brief for

appellant.

Alexandra Leake, Assistant United States Attorney, with whom

_______________
Donald

K.

Stern,

United

States

Attorney,

was on

brief

for

_________________
appellee.

____________________

August 27, 1997

____________________

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

On July 6,

1995, Defendant-

Appellant Michael P. Fosher ("Fosher") pled guilty to four counts

of an indictment, which charged him with racketeering conspiracy,

in violation of 18 U.S.C.

of

18

U.S.C.

1962(d), racketeering, in

1962(c),

interstate

property, in

violation of 18

violation of

18 U.S.C.

court

imposed

upward

On

2314, and

of stolen

conspiracy, in

March 5, 1996, the sentencing

adjustments for

victim and for Fosher's

determined

371.

U.S.C.

transportation

violation

an

unusually vulnerable

role in the offense.

The court further

that Fosher's armed bank robbery conviction under the

Federal Youth Corrections Act, 18 U.S.C.

previously set aside

5005 et seq. ("FYCA"),

_______

pursuant to that Act, was properly included

in the Criminal History Category calculation.

calculated Fosher's

Total Offense Level

The district court

at 33 and

his Criminal

History

Category at

range of 168

light

of

III, resulting

to 210 months.

Fosher's

in

a guideline

The government requested that,

substantial assistance,

downward departure under

sentencing

5K1.1

the

court

in

grant a

and impose a 60 month sentence.

The court granted the government's downward departure motion, and

sentenced Fosher to 78 months' imprisonment.

sentence, arguing that

regarding

offense

the district court

the unusually vulnerable

adjustments,

as

Criminal History Category

FYCA.

well

as

Fosher

erred in its

victim and

its

appeals his

rulings

the role

inclusion

in

of his set-aside conviction

in the

Fosher's

under the

For the reasons set forth herein, we reverse and remand in

part and affirm in part.

-2-

BACKGROUND
BACKGROUND

portions

In

presenting the

of

the

Presentence

sentencing hearing transcript.

facts, we

consult the

Report ("PSR"),

as

uncontested

well

as the

United States v. Lagasse, 87 F.3d

_____________
_______

18, 20 (1st Cir. 1996).

In December 1991, Fosher called Michael Chinn ("Chinn")

from Florida and told Chinn that he would

Florida so

Fort

that they could

Lauderdale with

tickets for

Fosher, while Corso

arrival

in Fort

friend of Philip

Bomengo

do "something big."

Anthony

both were

Corso

("Schoff") had told

The

Chinn

stayed with his father, Philip

Corso to a

house he had targeted

Chinn flew

("Corso").

purchased by Fosher.

Lauderdale, Chinn

("Bomengo").

pay Chinn's airfare to

and

Corso were

restaurant to meet

During

lunch, Fosher

for a home invasion.

Fosher that the house

airline

stayed with

Corso.

Upon

taken by

Fosher and

told them

Donald

to

Joe

about a

Marks Schoff

contained $500,000 in

gold coins and a five carat diamond ring and was occupied by a 62

year old

that he

woman, her daughter

wanted Chinn

waited outside

in a

and granddaughter.

and Corso

van and

to

enter the

Schoff waited

Fosher stated

house, while

at the

end of

he

the

street listening to a police

weapons

and

Fosher

scanner.

unsuccessfully

They also discussed using

sought

weapons

from

an

acquaintance he ran into in the restaurant.

Thereafter, Fosher,

met Philip

Corso at Corso's

Chinn, Corso, Bomengo,

house.

and Schoff

Schoff described

where the

participants looked at some guns

at Philip

-3-

money was kept.

The

Corso's

house and

declined to let

hardly needed

wanted

to

the group use

since the

borrow the

guns.

the guns because

victim was

an older

Philip

Corso

the guns

"were

woman."

At

the

meeting,

Bomengo suggested that the participants pose as florist

delivery

men.

Fosher determined

florist

that

minivan to

resemble

discussion,

Fosher

made

decisions and

the

morning

of January

he would

delivery

truck.

assigned

rent a

white

During

roles

the

to the

participants.

On

8,

1992,

Fosher, Chinn,

Corso, and Schoff executed the home invasion.

Fosher, Chinn, and

Corso

van, while

drove to

the

victim's

followed in a second car.

house in

the

Schoff

On the way to the victim's house, they

purchased a floral arrangement and

gloves and "ties" to bind the

victims.

flowers.

asked her

Corso and

Chinn

worth

for

the keys

to the

front

floor safe

Fosher and Schoff

Upon opening the safe, they

of gold coins.

where the other safe

men

to the

door with

When the victim came to the door, they entered.

attempted to open it.

help him.

went

took the

the garage

to

victim and asked her

jewelry lockbox

When they were

and

discovered only $500,000

and the five carat diamond ring

her

Corso

entered the garage

They approached the

victim to

valued at $23,000.

in

the

were.

and took

unable to find a

The

jewelry

five carat

diamond, Fosher told Chinn, within the hearing of the victim, "if

she doesn't tell you where the other safe is, shoot her."

told the victim that he would not let them hurt her.

-4-

Chinn

When they

left the

victim's house,

the four

Fosher's condominium, where they divided the coins.

went to

Fosher made

Corso throw away the jewelry for fear that it might allow someone

to

identify them.

Corso left

$80,000 in coins with him

to

Florida soon

to Massachusetts.

Massachusetts, carrying cash

thereafter, taking

Chinn also returned

received from Fosher

after the

coins had been melted down.

On May 11,

1995, a federal grand jury

returned a five

count indictment against Fosher and Corso.

Fosher executed a plea and

On

June

27,

1995,

cooperation agreement with the United

States Attorney's Office, agreeing to plead guilty to four counts

of the indictment.1

the

The agreement provided that, at sentencing,

government would take

Sentencing Guidelines

the position under

("U.S.S.G.") that

the United States

Fosher's offense

was 33, for which the guideline

sentencing range was 135 to

months.

that

The

agreement

calculation and reserved

noted

Fosher

objected

the right to argue for

level.

Fosher agreed

to

cooperate with

assuming

he provided substantial

the

assistance, the

to

level

168

this

a lower offense

government and,

U.S. Attorney

agreed to file a motion for a two level downward adjustment under

U.S.S.G.

5K1.1.

On July

through

Four.

6,

1995, Fosher

At his

March 5,

probation department presented

pled

guilty to

Counts

1996, sentencing

its PSR, in which

One

hearing, the

the department

____________________

The United States

Attorney's Office agreed to

dismissed the

fifth count.

-5-

concluded

that the

four

counts

constituted

seven

groups

of

offenses.

The

Offense Level

relating to

probation department

for

an

others, of the

each

invasion and

home of a 62

the highest Adjusted

level

group and

calculated

determined

robbery,

the

that

executed by

the

group

Fosher

year old Fort Lauderdale

Offense Level at 33.

Adjusted

and

woman had

This included a two-

upward adjustment for an unusually vulnerable victim under

U.S.S.G.

3A1.12 and a four-level

upward adjustment for being a

leader or organizer of five or more participants under U.S.S.G.

3B1.1.3

and

After applying the grouping rules under U.S.S.G.

providing

for

downward

adjustment

responsibility, the probation department

for

3D1.4

acceptance

of

concluded that Fosher's

Total Offense Level was 33.

The

probation

department

concluded

that

Fosher's

Criminal History Category was III, including in the calculation a

conviction for armed bank robbery under the FYCA.

____________________

Section 3A1.1(b) provides in relevant part:

If the

defendant knew

or should

have known

that a

victim of the

offense was

unusually

vulnerable

due to

age,

physical or

mental

condition, . . . increase by 2 levels.

Section 3B1.1(a) provides in relevant part:

Based on the defendant's role in the offense,

increase the offense level as follows:

(a)

If the
or
that

defendant was

leader of

a criminal

involved

participants

an organizer

five
or

was

activity
or

more

otherwise

extensive, increase by 4 levels.

-6-

On

February 26, 1996,

upward adjustments

Fort Lauderdale

conviction

it

in calculation of

home invasion and

in the

argued that

Fosher filed objections

the offense level

to the inclusion of

Criminal History

Category

to the

for the

his FYCA

calculation.

He

the FYCA conviction should not be considered because

had been "set

aside" pursuant to

the FYCA on

September 24,

1982.

At the

sentencing hearing,

the district court

agreed

with the findings

an

in the PSR and imposed

unusually vulnerable

offense.

The

court

victim

further

upward adjustments for

and for

Fosher's

determined

that

role in

Fosher's

the

FYCA

conviction was properly included in the Criminal History Category

calculation.

Offense Level

resulting in a

The

The

district court, therefore, set

at 33

and his Criminal

Fosher's

substantial

assistance,

5K1.1 downward

the court

sentence.

departure

Fosher to 78 months' imprisonment.

DISCUSSION
DISCUSSION

at III,

to 210 months.

motion requesting that,

departure and impose a 60-month

government's

History Category

guideline sentencing range of 168

government submitted a

Fosher's Total

grant

in light of

downward

The court allowed the

motion, but

sentenced

I.
I.

Unusually vulnerable victim

Unusually vulnerable victim

The

victim

of the

government insists that

Fort

Lauderdale

home

the issue of

invasion

was

whether the

"unusually

vulnerable" is a factual issue and therefore that the clear error

standard applies.

Fosher argues

vigorously that the facts being

-7-

undisputed, the

only question

presented is a

legal one

of the

sentencing

court's application of

requiring de novo review.

________

application of

a legal

the guidelines to

"[Q]uestions .

. .

standard to undisputed

of the

proper

facts . .

. are

usually called 'mixed questions' of fact and law."

v. Wright,
______

this

973 F.2d 437, 442

context

application

amply

are

Newman,
______

982 F.2d

demonstrate,

often

predominantly factual

difficult

or legal.

665, 671

Pilgrim Market Corp., 944

_____________________

States v. Cousens,
______
_______

(1st Cir. 1989).

(1st

such

to

the facts,

United States
_____________

As

issues

our cases in

of

pigeonhole

sentencing

as

either

See, e.g.,
___ ____

United States
_____________

v.

Cir. 1992);

United States
_____________

v.

F.2d 14, 16

(1st Cir.

942 F.2d 800, 805-07 (1st

1991); United
______

Cir. 1991); United

______

States v.
______

Because we

district

Rule Indus., 878

___________

F.2d 535,

remand the unusually

court

we need

not

542 n.7 (1st

Cir. 1989).

vulnerable victim issue

decide the

difficult

to the

standard of

review question.

Section 3A1.1(b) of the Sentencing Guidelines calls for

a two level upward enhancement

[i]f the defendant knew or should

that a

victim of

the offense

vulnerable

due to

age,

condition,

or that

particularly

have known

was unusually

physical or
victim was

susceptible

to

the

mental

otherwise
criminal

conduct.

We

have recognized that

this guideline "is

primarily concerned

with the impaired capacity of the victim to detect or prevent the

crime, rather than the quantity

of harm suffered by the victim."

United States v.
_____________

484, 486 (1st

Gill, 99 F.3d
____

Cir. 1996).

The

question is

whether

"'a particular

victim was

less likely

to

-8-

thwart the crime, rather than

crime is

successful.'"

Id.
___

more likely to suffer harm

(quoting United States v.

_____________

if the

Kaye, 23
____

F.3d 50, 54 (2d Cir. 1994)).

We have discouraged

"unusually

vulnerable

victim"

sentencing courts

finding

based

from making

solely

on

an

the

victim's membership

in a particular

class.

Id. at
___

487; United
______

States v. Feldman, 83 F.3d 9, 15 (1st Cir. 1996) ("[I]n

______
_______

warrant a

finding of unusual

order to

vulnerability, there must

be some

evidence, above and beyond mere membership in a large class, that

the

victim possessed

exploited.").

cases

special

inferences

to

be

about unusual vulnerability

section

drawn

U.S.S.G.

the

3A1.1."

Gill,
____

robbery of

regarding

99

defendant

that in some

particular

class

that "there can be little doubt

of class members within

Commission recognized this when it

section the

that

At the same time, we have recognized

characteristics may be so strong

of

weakness

F.3d at

487.

The

the meaning

Sentencing

used as an example under this

someone confined to

a wheelchair.

3A1.1 comment. n.2; see also Gill, 99 F.3d at 487.

See
___

________ ____

We

in

are concerned with the application of section 3A1.1

the context

of

this case.

The PSR

revealed

that Fosher

surveyed the victim's home and determined that it was occupied by

an

elderly woman,

her

daughter,

and

her

daughter's

infant.

Following this surveillance, the perpetrators declined the use of

weapons to commit the robbery.

perpetrators' decision

necessary,

the

that

district

Based on the victim's age and the

the use

of

court concluded

-9-

weapons would

that

Fosher

not

be

knew or

should

have

known that

the

victim

"impaired capacity" to prevent the

home.

From

our review of

in

this case

would

have

entry into and robbery of her

the record, it

appears the

district

court failed to address the "individual characteristics" required

to

support a

vulnerable.

finding

that a

Because of

particular

this conclusion,

victim was

we must

issue to the district court for its consideration.

unusually

remand this

-10-

II.
II.

Role in the offense

Role in the offense

We

determinations

107 F.3d

review a

district

court's

for clear error.

949, 956 (1st Cir. 1997).

role

in

the

offense

See United States v. D'Andrea,

___ _____________
________

A court making a four-level

role-in-the-offense

must

first

determine

organizer/leader of

court

asks

activity

involved

five

or more

court

Cir.

.'"

acted

not

that

defined

as

to

consider "the

the

in the

the

v. Preakos,
_______

(quoting U.S.S.G.

only

an

criminal

responsible for

United States
_____________

look

3B1.1(a)

If so,

defendant's role in the

but may

defendant's relevant conduct."

612, 615 (1st

whether

participants,

1990)

need

underlying the conviction,

of

are 'criminally

In determining a

sentencing

defendant

criminal activity.

offense . . .

(1st

U.S.S.G. section

the

question

persons who

7, 10

Commentary).

the

a specific

separate

commission of the

F.2d

"whether

the

Commentary as

907

adjustment under

the

3B1.1,

offense,

elements

whole of

the

United States v. Savoie, 985 F.2d

_____________
______

Cir. 1993); see also U.S.S.G. Ch. 3, Pt. B, intro.

________

comment.

Fosher does not challenge the sentencing court's status

determination.

court

His

argument focuses

on

properly found five participants in

whether the

district

the home invasion and

robbery.

The commentary defines a "participant" as "a person who

is criminally

need not

n.1.

responsible for the commission of the offense, but

have been convicted."

U.S.S.G.

3B1.1

comment. app.

Fosher concedes that there were four criminally responsible

participants:

him, Chinn, Corso,

-11-

and Schoff.

At the sentencing

hearing, the government argued that both Philip Corso and Bomengo

were criminally responsible participants even though they did not

actually participate in

one

of them was

the

district

the robbery.

We need

a criminally responsible

court's

upward

only confirm that

participant to affirm

adjustment.

Philip

Corso's

assistance

in devising the perpetrator's scheme is sufficient to

find

he

that

guidelines.

is

Philip

participant

Corso

within

assisted

the

Schoff

meaning

in

of

the

targeting

the

victim's home for the commission of this robbery, he provided the

home in which the planning meeting took place, he participated in

the planning meeting with the four robbery perpetrators,

response to

the perpetrators'

weapons, he

advised

discussion regarding

against the

entry into the victim's home.

Philip

Corso to

robbery.

be

necessity of

the use

weapons to

Such acts were sufficient

participant in

the

and, in

of

gain

to find

commission of

this

We therefore find no error in the district court's role

in the offense determination.

III.
III.

Criminal History Category

Criminal History Category

In 1977,

Fosher was

convicted of

armed bank

under the Federal Youth Corrections Act, 18 U.S.C.

(repealed

provisions,

1984).

see 18
___

In

1982,

U.S.C.

discharged and his conviction

pursuant

5021,

to

the

was set aside.

5005 et seq.
_______

Act's

Fosher was

robbery

set-aside

unconditionally

Fosher

challenges

the sentencing court's inclusion of his FYCA set-aside conviction

in the calculation

of his Criminal History Category.

that his set-aside

conviction is to be treated

He claims

as an "expunged"

-12-

conviction under

U.S.S.G.

4A1.2.

issue of whether a conviction set

counted

We have yet

to address the

aside under the FYCA should be

under the Sentencing Guidelines.4

When faced with this

issue, a majority

conviction

of our sister circuits have ruled that an FYCA

may properly be included in calculating a defendant's

criminal history, see United States v. Moreno, 94 F.3d 1453 (10th

___ _____________
______

Cir.

1996); United States v.

______________

Nicolace, 90
________

1996); United States v. Wacker,

______________
______

United States v.
______________

Levi, 45
____

F.3d 255

72 F.3d 1453 (10th

F.3d

453 (D.C.

(8th Cir.

Cir. 1996);

Cir. 1995);

United
______

States v. Ashburn, 20 F.3d 1336 (5th Cir. 1994); United States v.

______
_______
_____________

Gardner,
_______

860 F.2d

1391

FYCA

(7th

determined

that

convictions

and should not

Cir. 1988),

convictions

are

while

only one

similar

be considered under

to

has

expunged

the guidelines,

see United States v. Kammerdiener, 945 F.2d 300 (9th Cir. 1991).5
___ _____________
____________
____________________

4
the

Fosher claims that two

FYCA support his

may not
opinions

contention that his

be included in
are

opinions of this circuit

232 (1st Cir. 1984)

conviction to

set-aside convictions

calculating his criminal history.

inapposite,

Sentencing Guidelines.

relating to

as

neither

was

decided

See United States v. Doe,

___ _____________
___

(ruling that FYCA does

be destroyed

and noting that

under

Both

the

732 F.2d 229,

not allow record

the FYCA

of

set aside

provision "prevents the fact of conviction from being used to the

youth offender's
F.2d 1030, 1032
may not

legal detriment");

(1st Cir. 1972) (in ruling

be used

FYCA is to give

Mestre Morera
_____________

to deport petitioner,

v. INS,
___

462

that FYCA conviction

finding that

an offender "a second chance, free

purpose of

of all taint

of a conviction").

Fosher also

support,

cites

but none

opinions

of those

convictions are not

history provisions.

from

two other

opinions ruled that

to be counted under

circuits

for

FYCA set-aside

the guidelines criminal

See United States v. Corrado,

___ _____________
_______

53 F.3d 620,

621 n.1 (3d Cir. 1995) (noting that government conceded that FYCA

conviction should not be counted); United States v. Doe, 980 F.2d

_____________
___
876

(3d

called

Cir. 1992)
for

the

(ruling

actual

that FYCA's

removal

of

any

set

aside provisions

records

related

to

conviction); United States v. Beaulieau, 959 F.2d 375, 380-81 (2d

_____________
_________

-13-

Section 4A1.2(j) provides that expunged convictions are

not to be counted in

determining Criminal History Category.

Commentary provides the following:

number

of

procedures

jurisdictions

pursuant

to

have
which

various
previous

convictions may be set aside or the defendant

may

be

pardoned

for reasons

unrelated

to

innocence or errors of law, e.g., in order to

____
restore civil rights or

to remove the stigma

The

associated

with

criminal

conviction.

Sentences resulting from such convictions are

to be counted.

However, expunged convictions

are not to be counted.

U.S.S.G.

FYCA is

law"

4A1.2,

comment app. note 10.

A set-aside

under the

made for

"reasons unrelated to

innocence or

errors of

of the

considered

type

that

the guidelines

in calculating Criminal

contemplate

History.

The

are to

FYCA, section

5021, provided:

(a)

Upon the unconditional

Commission

of

committed

discharge by the
youth

offender

before the expiration of the maximum sentence

imposed

upon him,

the

conviction shall

automatically

set aside

and the

shall

to

youth

issue

the

be

Commission
offender

certificate to that effect.

(b)

Where

on probation
thereafter,

a youth offender has

by

the court,
in

its

the

been placed
court

be

may

discretion,

unconditionally discharge such youth offender

from probation prior to the expiration of the

maximum period of probation theretofore fixed
by

the

court,

automatically set

which

discharge

aside the

shall

conviction, and

the court shall issue to the youth offender a

certificate to that effect.

____________________

Cir. 1992)
statute

(holding that
was

improperly

sealed record
considered

calculation).

-14-

under Vermont
in

criminal

juvenile

history

18 U.S.C.

5021 (repealed).

The language of

not call

for expunging a

mandates

that the youth offender

the effect that

under

the

youth offender's records,

but instead

shall receive a certificate to

the conviction has been set aside.

FYCA is

innocence, but

the statute does

set

aside

not because

because the offender's

of

A conviction

legal

error or

"post-offense conduct has

persuaded the court to terminate his sentence of probation before

the assigned

completion date."

United States v.
_____________

McDonald, 991
________

F.2d 866, 871 (D.C. Cir. 1993) (analyzing a set-aside

under

the

District

of

analogous to the FYCA).

is not

the

convictions,

same

as the

Columbia's

The

Youth

conviction

Rehabilitation

FYCA's use of the term "set

Guideline's

treatment

of

Act,

aside"

"expunged"

but is more analogous to the Guideline's definition

of a

"set aside" conviction,

criminal history

one that is

calculation.

Moreover, had Congress

that all records of a youthful conviction

completely

unavailable

or

to be counted

destroyed such

in the

intended

under the FYCA be made

that

they

could no

longer be considered for any future purposes, Congress could have

specified the remedy of expungement

set-aside.

1984)

rather than a certificate of

See United States v. Doe, 732 F.2d 229, 232 (1st Cir.
___ _____________
___

(in affirming

district court's

refusal

to destroy

FYCA

records, noting that ordering expungement under the statute would

require a

rewriting of

the statute); Ashburn,

_______

20 F.3d

at 1342

(collecting cases).

In

Supreme

determining

Court noted

in

the

dicta

import

of

that the

this

FYCA

provision,

the

was intended

to

-15-

address

the

"numerous

civil

and

social

disabilities"

that

accompany a conviction, recognizing that "a conviction may result

in the

serve

loss of the rights to

on

professions."

jury,

and

to

vote, to hold a

practice

various

public office, to

occupations

and

Tuten v. United States, 460 U.S. 660, 664 (1983).

_____
______________

Although the FYCA was intended

to benefit a youthful offender by

providing

a second chance to start life

criminal conviction, id.

___

without the stigma of a

("Congress' purpose in adopting

5021

was to promote the rehabilitation of youth offenders by providing

a substantial

sentence

positive behavior

under the YCA."); Webster, 606

_______

that Congress

start,

incentive for

"intended to

free from

of

F.2d at 1234-35 (noting

give youthful

the stain

while serving

ex-offenders a

a criminal

fresh

conviction, and

an

opportunity to clean their slates to afford them a second chance,

in terms of both jobs and standing in the community"), it was not

meant to allow a recidivist to avoid increased penalties based on

earlier

criminal convictions.

("[T]his beneficent offer

See Ashburn,
___ _______

of a 'second

20

F.3d at

chance' to the

1343

immature

offender

should not

original

encounter

be available

with

the

as a

criminal

shield for

world

is

those whose

used

as

springboard to a life of felonious conduct."); McDonald, 991 F.2d

________

at 872

("[I]f a juvenile

case for conferring

the benefit dissipates.

interest is in punishing

(citations

offender turns into a

omitted)).

recidivist, the

Society's stronger

appropriately an unrepentant criminal."

Thus,

counting

-16-

an

FYCA

set-aside

conviction in calculating

a defendant's criminal history

is not

contrary to the purposes of the FYCA.

Fosher further

argues that

consideration of

the FYCA

conviction violates the ex post facto clause, U.S. Const. art. I,

_____________

9, cl. 3, because the law increases the punishment for his 1977

armed

robbery conviction.

changes the punishment,

the law

Weld,
____

annexed to

73 F.3d

An ex post facto law is

______________

and inflicts a greater

the crime, when

1156, 1162

(1st

Florida, 482 U.S. 423, 429 (1987)).

_______

punishment, than

committed.'"

Cir. 1996)

one "'that

Dominique v.
_________

(quoting Miller
______

"The concern of the

v.

ex post
_______

facto
_____

prohibition is to assure that

warning of their

legislative acts 'give fair

effect and permit individuals to

meaning until explicitly changed.'"

United States
_____________

rely on their

v. Forbes, 16
______

F.3d 1294, 1301 (1st Cir. 1994) (quoting Miller, 482 U.S.
______

(1987)).

As

the Supreme Court has recognized,

offender

statute, which

increased

present

at 430

a state habitual

penalties based

prior criminal conduct, is not an ex post facto law, because

_____________

on

the

consideration of prior convictions imposes increased penalties to

the

"latest

crime, which

offense because

is

a repetitive

considered

one."

to be

Gryger
______

an

aggravated

v. Burke,
_____

334 U.S.

728, 732 (1948), quoted in Forbes, 16 F.3d at 1302.

_________ ______

"Gryger thus
______

recognized

an

the legislature's

authority

to

enact

enhanced

penalty

for future

obtained prior to

Forbes, 16 F.3d
______

conduct preceded

by

a criminal

enactment of the enhanced

at 1302.

The district

conviction

penalty provision."

court's consideration of

-17-

Fosher's

FYCA

conviction

in determining

his

criminal history

category did not violate the ex post facto clause.

_____________

CONCLUSION
CONCLUSION

For the

foregoing reasons,

part, and affirm in part.

affirm
______

we reverse
reverse
_______

and remand
remand
______

in

-18-