2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-6-2006

USA v. Lovett

Precedential or Non-Precedential: Precedential

Docket No. 05-4171

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Recommended Citation

"USA v. Lovett" (2006). 2006 Decisions. Paper 147.

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PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 05-4171

UNITED STATES OF AMERICA

 v.

BRIAN T. LOVETT, JR.,

 Appellant

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No.: 04-CR-32

District Judge: The Honorable Kim R. Gibson

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

October 24, 2006

Before: SMITH, FISHER, and COWEN, Circuit Judges

(Filed: November 6, 2006)

Karen S. Gerlach

Office of Federal Public Defender

1001 Liberty Avenue
2

1450 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Laura S. Irwin

Kelly R. Labby

Office of United States Attorney

700 Grant Street

Suite 400

Pittsburgh, PA 15219

Counsel for Appellee

 

OPINION

 

SMITH, Circuit Judge.

Brian T. Lovett, Jr. pleaded guilty on March 24, 2005, to

making a false statement to a federally licensed firearms dealer

in violation of 18 U.S.C. § 922(a)(6), an offense subject to a

maximum term of imprisonment of ten years and a maximum of

three years of supervised release. See 18 U.S.C. § 924(a)(2).

Prior to sentencing, Lovett challenged, inter alia, the presentence report (PSR) statement that his offense was a Class C

felony subject to a three year term of supervised release under

18 U.S.C. § 3583(b)(2). In a memorandum, the United States

District Court for the Western District of Pennsylvania initially

sustained Lovett’s objection, stating that Lovett’s offense of
 The District Court exercised jurisdiction pursuant to 18 1

U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper,

437 F.3d 324, 327-28 (3d Cir. 2006).

3

conviction exposed him to a term of supervised release of no

more than one year. The District Court amended its

memorandum shortly thereafter, reversing itself and clarifying

that the statutory maximum term of supervised release was in

fact three years under 18 U.S.C. §§ 922(a)(6), 924(a)(2),

3559(a)(3), and 3583(b)(2). The Court sentenced Lovett to a 16

month term of imprisonment and a three year period of

supervised release. This timely appeal followed. 

1

Lovett challenges only the imposition of a three year

period of supervised release. Lovett acknowledges that 18

U.S.C. § 3559(a) determines the letter classification of his

criminal offense based on the “maximum term or imprisonment

authorized . . . .” He also agrees that the letter classification

governs the maximum term of supervised release under 18

U.S.C. § 3583(b)(2). Because he committed his offense of

conviction before the Supreme Court issued its opinion in

United States v. Booker, 543 U.S. 220 (2005), Lovett argues that

under § 3559(a) the “maximum term of imprisonment

authorized” should have been computed based on his maximum

term of imprisonment under the then mandatory United States

Sentencing Guidelines, not the statutory maximum term of ten

years. Thus, he submits that, consistent with his guideline range
4

of twelve to eighteen months, his offense under § 3559(a)

should have been classified as a Class E felony for which the

term of supervised release should not have exceeded one year,

instead of a Class C felony subject to not more than three years

of supervised release. See 18 U.S.C. § 3559(a). According to

Lovett, the imposition of this longer three year term of

supervised release violates the Sixth Amendment and constitutes

an ex post facto violation of the Due Process Clause. 

We conclude that the District Court correctly classified

Lovett’s offense as a Class C felony subject to a maximum of

three years of supervised release. “As in all statutory

construction cases, we begin with the language of the statute.

The first step is to determine whether the language at issue has

a plain and unambiguous meaning with regard to the particular

dispute in the case. The inquiry ceases if the statutory language

is unambiguous and the statutory scheme is coherent and

consistent.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450

(2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997) (internal quotation marks omitted)); see also Estate of

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)

(instructing that “[i]n a statutory construction case, the

beginning point must be the language of the statute, and when

a statute speaks with clarity to an issue judicial inquiry into the

statute’s meaning, in all but the most extraordinary

circumstance, is finished”).

Section 3559(a) of the Federal Crimes Code classifies
 See 18 U.S.C. § 474 (providing that the counterfeiting of 2

obligations and securities is a Class B felony); 18 U.S.C. § 474A

(providing that persons are guilty of a Class B felony if they

control or possess certain distinctive paper or the ink, watermark

or seal of U.S. currency); 18 U.S.C. § 514 (providing that the

uttering of counterfeit obligations is a Class B felony); 16

U.S.C. § 4711(g)(2) (making violation of regulations regarding

the prevention of aquatic nuisances into U.S. waters a Class C

felony); 33 U.S.C. § 1232 (making the violation of the chapter

or regulations pertaining to ports and waterways safety a Class

D felony).

5

federal crimes by letter grades “A” through “E.” 18 U.S.C. §

3559(a). Some of the statutory provisions in the Federal Crimes

Code specifically set out the letter grade of the felony at issue.2

If the statute of conviction does not designate the letter grade of

the offense, § 3559(a) specifies that the classification is based

on the “maximum term of imprisonment authorized . . . .”

The plain text of § 3559(a) begins and ends our analysis

of whether this section’s use of the phrase “maximum term of

imprisonment authorized” meansthe defendant’s own guideline

range or the statutory maximum term of imprisonment. Section

3559(a) provides that an “offense that is not specifically

classified by a letter grade in the section defining it, is classified

[based on] the maximum term of imprisonment authorized . . .
 Section 3559(a) provides, in relevant part: 3

An offense that is not specifically classified by a letter

grade in the section defining it, is classified if the

maximum term of imprisonment authorized is –

(1) life imprisonment, or if the maximum penalty is

death, as a Class A felony;

(2) twenty - five years or more, as a Class B felony;

(3) less than twenty-five years but ten or more years, as

a Class C felony;

(4) less than ten years but five or more years, as a Class

D felony . . . .

18 U.S.C. § 3559(a). 

6

.” Thus, the classification process begins by identifying the 3

“offense” of conviction and determining whether the applicable

letter grade has been designated. If not, one must refer to the

“maximum term of imprisonment authorized.” The statute

specifically directs that the first step is to consult “the section

defining” the criminal offense to determine if a letter grade has

been assigned. If not, the “maximum term of imprisonment

authorized” is used to arrive at the proper classification. 

Lovett asserts, without any supporting authority, that the

maximum term of imprisonment refers to the maximum

guideline range. This construction, however, ignores the plain

text of the statute that starts the classification process by

reference to the “section defining” the criminal offense. The

phrase “the section defining it” can refer only to the Federal

Crimes Code as the sentencing guidelines neither define
7

criminal offenses, nor classify such offenses by letter grade. 

If a letter grade has been assigned by “the section

defining it,” the inquiry is at an end. If no letter grade has been

designated by the statute of conviction, the reference to “the

section defining it” is not without purpose. The “maximum term

of imprisonment authorized,” if contained in that particular

statutory provision, will provide the information necessary to

properly classify the offense. 

This process is straightforward. There is no need to

consult more than the “section defining” the criminal offense

and ascertain the “maximum term of imprisonment authorized.”

Noticeably absent from the text of the statute, which was

enacted as part of the Sentencing Reform Act of 1984 creating

the guidelines, is any language contemplating that the

sentencing guidelines must be consulted at some point in this

process to arrive at the “maximum term of imprisonment

authorized.” We should not read into the statute an interpretive

process which is not plainly included therein. See Board of

Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458

U.S. 176, 190 n.11 (1982) (observing that “Congress expresses

its purpose by words. It is for us to ascertain – neither to add

nor to subtract, neither to delete nor to distort”) (internal

quotation marks and citation omitted).

Our interpretation of § 3559(a) is consistent with that of

several of our sister courts of appeals. In United States v.
8

Cunningham, 292 F.3d 115 (2nd Cir. 2002), the defendant

argued that his guideline range should govern the offense

classification, as opposed to the statutory maximum. The Court

found that the “argument is wholly without support. We think

a plain reading of § 3559 demonstrates that the maximum term

of imprisonment authorized refers to the statutory maximum of

the offense and not a defendant’s personal Guideline range.” Id.

at 118. Furthermore, it reasoned that subsections (a) and (b) of

§ 3559 “should be read consistently.” Id. It pointed out that

subsection (b) specifies that the “maximum term of

imprisonment is the term authorized by the law describing the

offense” and that this clearly applies to the statutory maximum

in subsection (a) as well. Id.; see also United States v. AlfaroHernandez, 453 F.3d 280, 282 (5th Cir. 2006) (declaring that

“[t]he plain language of the statute indicates that the maximum

term of imprisonment is gleaned from the section defining the

offense, not from the maximum Guidelines sentence as

calculated by the district court and applicable to the defendant

. . . .”); United States v. Acres, 128 Fed. Appx. 538 (7th Cir.

2005) (noting that it would have been frivolous for defense

counsel to argue that the computation of the defendant’s

supervised release should have been computed based on his

guideline range).

The Cunningham Court also noted that under the

defendant’s interpretation the letter grade for the same offense

would vary from defendant to defendant based on each

individual’s criminal history and the circumstances surrounding
9

the offense of conviction. 292 F.3d at 119. We agree with this

observation and note that the resulting disparity in sentences

would have been contrary to the Sentencing Reform Act’s goal

of uniformity in sentencing. See 28 U.S.C. § 991(b) (specifying

that, inter alia, the purpose of the United States Sentencing

Commission is to establish sentencing policies and practices that

“avoid[] unwarranted sentencing disparities among defendants

with similar records who have been found guilty of similar

criminal conduct . . . .”); 18 U.S.C. § 3553(a)(6) (providing that

courts, in the imposition of sentence, should consider “the need

to avoid unwarranted sentence disparities . . . .”). 

Because Lovett’s maximum term of supervised release

was properly computed based on the maximum term of

imprisonment authorized by the statute of conviction as no more

than three years both before and after Booker, there was no ex

post facto increase. In the absence of an increase in his

punishment, we need not address Lovett’s constitutional

arguments. Nonetheless, as Lovett acknowledged in his reply

brief, even if he had been exposed to a greater term of

supervised release post-Booker, that would not constitute an ex

post facto violation of the Due Process Clause under United

States v. Pennavaria, 445 F.3d 720, 723-24 (3d Cir. 2006).

For the above reasons, we will affirm the judgment of the

District Court.