Gustavo Mejia, Petitioner-appellant, v. Eddie R. Myers; Attorney General, State of California,respondents-appellees, 978 F.2d 715 (9th Cir. 1992)

MEMORANDUM^** 

Gustavo Mejia, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his convictions for conspiracy to sell or transport cocaine, conspiracy to possess cocaine for sale, sale or transportation of cocaine, and possession of cocaine for sale. Mejia contends that the state trial court violated the proscription against ex post facto laws when it imposed a ten-year sentencing enhancement for possessing over twenty five pounds of cocaine. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

We review de novo the denial of a habeas petition. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). In order for a law or its interpretation to be in violation of the ex post facto clause of the United States Constitution, it must either impose a punishment for an act which is not punishable at the time it is committed, or impose additional punishment than previously prescribed. Weaver v. Graham, 450 U.S. 24, 28 (1981).

Mejia's offense was punishable at the time it was committed, because Cal.Health & Safety Code § 11370.4(a) (3) was enacted in 1985, which was two years prior to Mejia's offense.¹  See id. Mejia was sentenced to a base term of four years plus the ten-year enhancement, and received a total term of seventeen years and eight months for all of his counts. Mejia contends, however, that the ten-year enhancement was in violation of the "double-the-base-term" limitation of Cal.Penal Code § 1170.1(g).²  Mejia concludes that because Health & Safety Code § 11370.4(a) (3) was not specifically set forth as an exception to the double-the-term limitation in 1987,³  his sentence was improperly enhanced and therefore "increased punishment" in violation of the proscription against ex post facto laws. See id.

Mejia's argument lacks merit because the California Supreme Court⁴  has found that an enhancement could impliedly be an exception to the double-the-base-term limitation "to carry out the intention of the enactment" of the enhancement provision. California v. Jackson, 694 P.2d 736, 743 (Cal.1985) (in order to carry out the intent of Penal Code § 667 enhancement for prior felony convictions, there was an implied exception to the double-the-term limitation, due to a "draftman's oversight" in failing to amend Penal Code § 1170.1(g)), overruled on other grounds, California v. Guerrero, 748 P.2d 1150 (Cal.1988).

Specifically, the California Supreme Court has interpreted enhancements imposed pursuant to Cal.Health & Safety Code § 11370.4 prior to the 1988 amendment to Penal Code § 1170.1(g) to be impliedly excepted from the double-the-term limitation. California v. Pieters, 802 P.2d 420, 425 (Cal.1991). To find that section 11370.4 was not excepted from the double-the-base-term limitation would "defeat the manifest intention of the legislature in adding section 11370.4," which is to punish drug dealers in direct proportion to the amount of drugs possessed. Id. at 424 (citing California v. Carvajal, 202 Cal. App. 3d 487, 501-02 (Cal.Ct.App.1988)). Accordingly, the state trial court properly enhanced Mejia's sentence.

AFFIRMED.