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. e du/thir dc ir c uit_1999/260Filed 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 AppelleeLisa 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 Nove mber 4, 1998, in the district court. The appellant, Davi d Christopher McKenzie, pleaded guilty to an indictme nt charging him with a violation of 8 U.S.C. SS 1326(a ) and (b)(2) by knowingly and willfully re-entering the U nited States after being deported subsequent to his convi ction for commission of an aggravated felony. The district co urt sentenced McKenzie to a term of 41 months imprisonm ent to be followed by a two-year term of supervised rel ease.

The background of the case is as follows. McKenzief irst
entered the United States from Jamaica in 1986. On April 17, 1990, McKenzie was convicted in the Circuit Cou rt of Prince George's County, Maryland, for felony posses sion 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, 199 6,
McKenzie was arrested in the District of Columbia a nd charged with possession of an unlicensed and unregi stered pistol and possession of ammunition. McKenzie, howe ver, was not prosecuted for these alleged offenses as th e government instead instituted proceedings against h im leading to his deportation to Jamaica on June 3, 19 97.

2The events leading directly to this prosecution may be

traced to May 8, 1998, when McKenzie arrived at New ark 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 no t the owner of the passport, and that he had been deporte d for drug and weapons offenses. The prosecution culminat ing in this appeal followed.

Pursuant to U.S.S.G. S 2L1.2 the district court cal culated 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. T hen there was a 16-level increase pursuant to U.S.S.G. S 2L1.2(b)(1)(A) because of McKenzie's conviction f or an aggravated felony. Thus, McKenzie's adjusted offens e level was 24. The court, however, made a 3-level reductio n 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 calculatio ns.

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 adjustm ent from subsection (b)(1)(A) vary widely. If subsect ion (b)(1)(A) applies, and (A) the defendant has previousl y been convicted of only one felony offense; (B) su ch offense
was not a crime of violence or firearms offe nse; and (C) the term of imprisonment imposed for such of fense did not exceed one year, a downward departure ma y be warranted on the seriousness of the aggravat ed felony.

It is that request that brings us to the crux of th is appeal as the district court held that the application not e was inapplicable because, notwithstanding the partial suspension of sentence, the circuit court imposed a term of imprisonment exceeding one year for the crack cocai ne offense. We exercise plenary review on this appeal involving the interpretation of the sentencing guidelines. Se e, e.g., United States v. Huff, 873 F.2d 709, 713 (3d Cir. 1 989).

3II. DISCUSSION

McKenzie's argument is not complicated. He points t o 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 impri sonment was suspended, `sentence of imprisonment' refers on ly 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 p urposes of computing a defendant's criminal history categor y, a subject not at issue in this case. Thus, U.S.S.G. S 4A1.2(b), which we emphasize refers to "sentence of imprisonm ent" rather than "term of imprisonment" as used in Appli cation 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 imprisonm ent or a sentence with respect to an offense is deemed to in clude the period of incarceration or confinement ordered by a court of law, regardless of any suspension of the i mposition or execution of that imprisonment or sentence or ex ecution of that imprisonment or sentence in whole or in par t." Application Note 1 to U.S.S.G. S 2L1.2, which defin es terms for "purposes of [that] guideline," incorporates th e definition of aggravated felony in the last paragraph of 8 U.S .C. S 1101(a)(43) which uses the phrase "term of impris onment" 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 aggravate d 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 Ap plication Note 5 McKenzie was convicted of an aggravated felo ny in which the term of imprisonment did exceed one year. Consequently, the district court interpreted the gu idelines correctly. Finally, we point out that our result is in accord with United States v. Chavez-Valenzuela, 170 F.3d 1 038, 1039-40 (10th Cir. 1999), which the parties indicat e is the only published opinion directly on point.

4III. CONCLUSION

For the foregoing reasons the judgment of convictio n 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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