1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-22-1999

United States v. McKenzie

Precedential or Non-Precedential:

Docket 98-5490

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Recommended Citation

"United States v. McKenzie" (1999). 1999 Decisions. Paper 260.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/260
Filed September 22, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-5490 

UNITED STATES OF AMERICA 

v. 

DAVID CHRISTOPHER MCKENZIE, 

 Appellant 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Crim. No. 98-00303) 

District Judge: Honorable Jerome B. Simandle 

Submitted under Third Circuit LAR 34.1(a) 

September 17, 1999 

BEFORE: GREENBERG, SCIRICA, and RENDELL, 

Circuit Judges 

(Filed: September 22, 1999) 

 Faith S. Hochberg 

 United States Attorney 

 George S. Leone 

 Maureen A. Ruane 

 Office of the United States Attorney 

 970 Broad Street 

 Room 700 

 Newark, NJ 07102 

 Attorneys for Appellee 
 Lisa C. Evans 

 Julie A. McGrain 

 Office of Federal Public Defender 

 800 Hudson Square 

 Suite 350 

 Camden, NJ 08102 

 Attorneys for Appellant 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

This matter is before this court on an appeal from a 

judgment of conviction and sentence entered on November 

4, 1998, in the district court. The appellant, David 

Christopher McKenzie, pleaded guilty to an indictment 

charging him with a violation of 8 U.S.C. SS 1326(a) and 

(b)(2) by knowingly and willfully re-entering the United 

States after being deported subsequent to his conviction for 

commission of an aggravated felony. The district court 

sentenced McKenzie to a term of 41 months imprisonment 

to be followed by a two-year term of supervised release. 

The background of the case is as follows. McKenziefirst 

entered the United States from Jamaica in 1986. On April 

17, 1990, McKenzie was convicted in the Circuit Court of 

Prince George's County, Maryland, for felony possession of 

crack cocaine with the intent to distribute it. The state 

court sentenced McKenzie to a three-year term of 

imprisonment to be followed by a three-year term of

probation. The court, however, suspended two years and 

three months of the prison term. On October 26, 1996, 

McKenzie was arrested in the District of Columbia and 

charged with possession of an unlicensed and unregistered 

pistol and possession of ammunition. McKenzie, however, 

was not prosecuted for these alleged offenses as the 

government instead instituted proceedings against him 

leading to his deportation to Jamaica on June 3, 1997. 

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The events leading directly to this prosecution may be 

traced to May 8, 1998, when McKenzie arrived at Newark 

International Airport on a flight from Jamaica with an 

altered passport in someone else's name. McKenzie 

admitted to the immigration officers that he was not the 

owner of the passport, and that he had been deported for 

drug and weapons offenses. The prosecution culminating in 

this appeal followed. 

Pursuant to U.S.S.G. S 2L1.2 the district court calculated 

McKenzie's total offense level as 21, which, with a criminal 

history category of II, yielded a sentencing range of 41 to 51 

months. The computations were as follows. First, U.S.S.G. 

S 2L1.2(a) established a base offense level of 8. Then there 

was a 16-level increase pursuant to U.S.S.G. 

S 2L1.2(b)(1)(A) because of McKenzie's conviction for an 

aggravated felony. Thus, McKenzie's adjusted offense level 

was 24. The court, however, made a 3-level reduction in 

calculating the total offense level for acceptance of 

responsibility pursuant to U.S.S.G. SS 3E1.1(a) and (b). 

McKenzie does not object to any of these calculations. 

McKenzie, however, requested a 2-level downward 

departure pursuant to Application Note 5 to U.S.S.G. 

S 2L1.2, which provides that: 

 Aggravated felonies that trigger the adjustment from 

 subsection (b)(1)(A) vary widely. If subsection (b)(1)(A) 

 applies, and (A) the defendant has previously been 

 convicted of only one felony offense; (B) such offense 

 was not a crime of violence or firearms offense; and (C) 

 the term of imprisonment imposed for such offense did 

 not exceed one year, a downward departure may be 

 warranted on the seriousness of the aggravated felony. 

It is that request that brings us to the crux of this appeal 

as the district court held that the application note was 

inapplicable because, notwithstanding the partial 

suspension of sentence, the circuit court imposed a term of 

imprisonment exceeding one year for the crack cocaine 

offense. We exercise plenary review on this appeal involving 

the interpretation of the sentencing guidelines. See, e.g., 

United States v. Huff, 873 F.2d 709, 713 (3d Cir. 1989). 

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II. DISCUSSION 

McKenzie's argument is not complicated. He points to 

U.S.S.G. SS 4A1.2(b)(1) and (2) which provide that "[t]he 

term `sentence of imprisonment' means a sentence of

incarceration and refers to the maximum sentence 

imposed" but that "[i]f part of a sentence of imprisonment 

was suspended, `sentence of imprisonment' refers only to 

the portion that was not suspended." The difficulty with 

McKenzie's position is, however, obvious as U.S.S.G

S 4A1.2(b) defines "sentence of imprisonment" for purposes 

of computing a defendant's criminal history category, a 

subject not at issue in this case. Thus, U.S.S.G. S 4A1.2(b), 

which we emphasize refers to "sentence of imprisonment" 

rather than "term of imprisonment" as used in Application 

note 5, is not implicated here. 

What is implicated here is 8 U.S.C. S 1101(a)(48)(B) which 

provides that "[a]ny reference to term of imprisonment or a 

sentence with respect to an offense is deemed to include 

the period of incarceration or confinement ordered by a 

court of law, regardless of any suspension of the imposition 

or execution of that imprisonment or sentence or execution 

of that imprisonment or sentence in whole or in part." 

Application Note 1 to U.S.S.G. S 2L1.2, which defines terms 

for "purposes of [that] guideline," incorporates the definition 

of aggravated felony in the last paragraph of 8 U.S.C. 

S 1101(a)(43) which uses the phrase "term of imprisonment" 

as defined in 8 U.S.C. S 1101(a)(48)(B). 

As we have indicated, McKenzie pleaded guilty to a 

violation of 8 U.S.C. S 1326 because he re-entered the 

United States after his conviction for an aggravated felony. 

Inasmuch as U.S.S.G. S 2L1.2 implements 8 U.S.C. S 1326, 

it follows inexorably that within the meaning of Application 

Note 5 McKenzie was convicted of an aggravated felony in 

which the term of imprisonment did exceed one year.

Consequently, the district court interpreted the guidelines 

correctly. Finally, we point out that our result is in accord 

with United States v. Chavez-Valenzuela, 170 F.3d 1038, 

1039-40 (10th Cir. 1999), which the parties indicate is the 

only published opinion directly on point. 

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III. CONCLUSION 

For the foregoing reasons the judgment of conviction and 

sentence entered November 4, 1998, will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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