### 1999 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

3-5-1999 

# U S A v . Gr ah a m

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 98-1556

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1999

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1999 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U SA v . Gr ah a m " (1999). 1999 D e cisio n s

. P a pe r 58.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1999/58Filed March 5, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-1556

UNITED STATES OF AMERICA

v.

WINSTON C. GRAHAM a/k/a Vincent Graham, a/k/a Michael Diamond a/k/a Tyrone L. Simmons Winston C. Graham, Appellant

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. No. 97-cr-00642) District Judge: Honorable Eduardo C. Robreno

Argued: January 27, 1999

Before: BECKER, Chief Judge, SCIRICA and ROSENN Circuit Judges.

(Filed March 5, 1999)MAUREEN KEARNEY ROWLEY,

ESQUIRE
Chief Federal Defender
DAVID L. McCOLGIN, ESQUIRE
Assistant Federal Defender Supervising Appellate Attorney
SYLVIA A. RUSSIANOFF, ESQUIRE (ARGUED)
Assistant Federal Defender Defender Association of Philadelphia
Federal Court Division

437 Chestnut Street Philadelphia, PA 19106-2414

Counsel for Appellant

MICHAEL R. STILES, ESQUIRE United States Attorney
WALTER S. BATTY, JR., ESQUIRE Assistant United States Attorney Chief of Appeals
JUDY GOLDSTEIN SMITH, ESQUIRE ROBERT A. ZAUZMER, ESQUIRE (ARGUED) Assistant United States Attorneys
Suite 1250
615 Chestnut Street Philadelphia, PA 19106

Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This case requires us to determine whether a misdemeanor can be an "aggravated felony" under a provision of federal law even if it is not, technic ally speaking, a felony at all. The particular question before us is whether petit larceny, a class A misdemeanor und er New York law that carries a maximum sentence of one yea r, can subject a federal defendant to the extreme sanction s imposed by the "aggravated felon" classification. D espite

2our misgivings that, in pursuit of a clearly define d

legislative goal (to severely punish unlawful reent ry into this country), a carelessly drafted piece of legisl ation has improvidently, if not inadvertently, broken the his toric line of division between felonies and misdemeanors, we conclude that Congress was sufficiently clear in it s intent to include certain crimes with one-year sentences in t he definition of "aggravated felony." Congress has the power to determine penalties for unlawful reentry into this country and to define the classes of persons subject to tho se penalties. We think that in this case Congress's de finition requires a finding that this defendant was an aggra vated felon, though not a felon in the conventional sense , and therefore we will affirm the judgment of the Distri ct Court,
which sentenced Winston Graham in accordance with t hat approach.

I. Facts & Procedural History

Graham was deported in 1996 after serving a previou s sentence for reentering the country after his depor tation in 1990. He returned to the United States without perm ission from the Attorney General and was arrested by the Immigration and Naturalization Service in 1997. He again pled guilty to reentry into the US following deport ation, a violation of 8 U.S.C. S 1326, and was sentenced to 72 months in prison. The appeal is from that judgment, and raises only sentencing issues.

Graham has three state convictions: In February 198 6, he was convicted of unlawful possession of marijuan a, a violation with a maximum fine of $100, stemming fro m a November 1985 arrest. In May 1986, he was convicted of attempted possession of marijuana, a Class B misdem eanor with a maximum of three months' imprisonment, stemm ing from a November 1984 arrest. Finally, in May 1990, he was convicted of petit larceny, a Class A misdemeanor w ith a maximum of a year's imprisonment under New York law

. See N.Y. Penal Law S 155.25 (McKinney 1997). He rec eived a sentence of one year.

Congress has classified certain crimes as "aggravat ed felonies" for purposes of immigration and deportati on. See

38 U.S.C. S 1101(a)(43). In this case, the aggravate d felony

classification increases the penalty for the crime of reentering the country after deportation. See U.S.S .G. S 2L1.2(b)(1)(B) (incorporating the aggravated felo ny definitions of 8 U.S.C. S 1101(a)(43)). The Distric t Court found that Graham's second drug conviction and his petit larceny conviction should be classified as aggravat ed felonies, which triggered a sixteen-level increase in the base offense level. The aggravated felony classification changed Graham's guideline sentence range from 21-27 months to
70-87 months.

The District Court reasoned that, because Graham ha d a prior drug possession conviction, his second convic tion would have been a federal felony. However, because the conduct underlying Graham's second possession convi ction did not occur after his first possession conviction had become final, as the applicable statute requires in order to convert a second possession offense into a felony, see 21 U.S.C. S 844(a), Graham would not have been subject to felony punishment even had he been convicted under federal law. The government concedes the error on a ppeal, and therefore we need not resolve the question of w hether this "hypothetical federal felony" treatment is app ropriate.

We may still uphold Graham's sentence in its entire ty, however, because if even one of Graham's prior conv ictions qualifies as an aggravated felony, the full sixteen -level increase applies. The District Court reasoned that the petit larceny offense was also an aggravated theft felony because it carried a maximum sentence of at least one year. Graham argues that section 1101(a)(43)(G), which de fines a theft crime that qualifies as an aggravated felony, is patently ambiguous because it is missing a critical verb and can be interpreted two ways, one of which suppo rts Graham's claim. Therefore, he argues that due proce ss concerns and the rule of lenity, which requires amb iguous statutes to be construed in favor of defendants, su pport his claim.1 Graham also contends that the uses of "aggr avated

___________________________________________________ ______________

1. Graham also argues that collateral estoppel appl ies. We reject this contention. In his prior unlawful reentry prosecuti on, the District Court added four points to his criminal history instead o f sixteen, based on the

4felony" elsewhere in Title 8 make clear that an "ag gravated

felony" must first be a felony. While we reject bot h of these claims, the latter in particular deserves serious
consideration.

II. Minimum Sentence Versus Sentence Imposed

Section 1101(a)(43)(G) defines as an aggravated fel ony "a theft offense . . . for which the term of imprisonm ent at least one year." The sentence is obviously missing a crucial verb. Graham argues that there are two options: The statute could apply to theft offenses "for which th e term of imprisonment is at least one year" or to theft offe nses "for which the term of imprisonment imposed is at least one year." He then argues that, because we should inter pret ambiguous statutes to favor defendants, we should interpret the statute to mean "is," not "imposed," so that
the minimum term for the theft offense has to be at least one year. Since petit larceny carries no minimum te rm, he contends, it is not an aggravated felony under his interpretation.

Graham claims that the rule of lenity mandates his interpretation--courts should not interpret a statu te to increase a penalty when the interpretation can be b ased on "no more than a guess as to what Congress intended. " Ladner v. United States, 358 U.S. 169, 178 (1958).

___________________________________________________ ______________

very same information. However, the change in the l aw governing the definition of aggravated felonies means that the is sues are no longer the same, and therefore collateral estoppel cannot appl y. Under the law as it existed at the time of Graham's previous reentry prosecution, theft convictions had to carry sentences of at least five years to qualify as aggravated felonies, but Congress amended the law t o change "five" to "one." Furthermore, the government did not object t o the presentence report in the previous sentencing proceeding and th e district judge adopted the report and its findings in its entirety . The matter was thus not actually litigated in the previous sentencing p roceeding. See Haring v. Prosise, 462 U.S. 306, 316 (1983); In re Gober, 100 F.3d 1195, 1203 (5th Cir. 1996) (issue is not actually litigated if it is not denied by

the other party); In re Graham, 973 F.2d 1089 (3d Cir. 1992) (issues critical to judgment are nonetheless not "actually litigated " if the parties stipulate to them).

5However, the rule of lenity does not apply simply b ecause

a statute requires interpretation. See Caron v. Uni ted States, 118 S. Ct. 2007, 2012 (1998) (the rule is " not invoked by a grammatical possibility"); Muscarello v. United States, 118 S. Ct. 1911, 1919 (1998) (the rule only applies if "after seizing everything from which aid can be derived . . . we can make no more than a guess as to what Congress intended" (citations and internal quotatio n marks omitted)). Courts will also consider other clear pr ovisions of a law in order to interpret an ambiguous portion of the statute. See Hernandez v. Kalinowski, 146 F.3d 196, 199 (3d Cir. 1998).

Graham's statutory construction is flawed. Before i ts amendment in 1996, section 1101(43)(G) defined "aggravated felony" in relevant part as "a theft of fense . . . for which the term of imprisonment imposed (regardl ess of any suspension of such imprisonment) is at leastfiv e years." The reference was clearly to the term impos ed and not to the statutory minimum. Although the 1996 amendments created a typographical error by inadver tently removing the verb, there is no evidence that Congre ss intended to begin relying on the statutory minimum rather than the sentence actually imposed for a conviction . As we read the statute as a whole, even if "is" were the missing verb, the reference to "term of imprisonment" would still be to the term actually imposed, whatever the potentia l maximum might have been. What Graham really wants u s to do is to imply the word "minimum" into the statu te, so that the minimum term provided for by law would hav e to be at least one year to constitute an aggravated fe lony.

The statute, however, never suggests that the prope r referent is a crime's statutory minimum. As part of the 1996 amendments, Congress added a definitional prov ision at section 1101(a)(48)(B), providing that "[a]ny re ference [in S 1101(a)] to a term of imprisonment or a sentence with respect to an offense is deemed to include the peri od of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or e xecution of that imprisonment or sentence in whole or in par t."2 This

___________________________________________________ ______________

2. A further conforming amendment deleted the phras e "imposed (regardless of any suspension of imprisonment)" eac h place it appeared in 8 U.S.C. S 1101(a)(43)(F), (G), (N), and (P).

6suggests that the actual term imposed is ordinarily the

definitional touchstone.

It is true, as Graham contends, that other language in section 1101(a)(43) refers to a term that may be im posed as opposed to one that is imposed. See S 1101(a)(43)(J ) (covering racketeering and gambling crimes "for whi ch a sentence of one year imprisonment or more may be imposed"); S 1101(a)(43)(T) ("an offense relating t o a failure to appear before a court . . . for which a sentence of 2 years' imprisonment or more may be imposed"). Graha m is correct that the "may be imposed" language of these provisions is inconsistent with a reading of sectio n 1101(a)(48)(B) that would insist that every referen ce to a "term of imprisonment" refers to the term actually imposed. It is reasonable to read section 1101(a)(48)(B) ins tead as an instruction about how to treat suspended sentences.

However, there is still no indication that Congress wished to make the statutory minimum for a crime relevant to the definition of "aggravated felony." The fact that so me provisions of section 1101(a)(43) refer to a term t hat "may be imposed" while others refer to crimes "for which the term of imprisonment is at least 12 months," S 1101(a)(4 3)(P), demonstrate that Congress knows how to distinguish between the penalty authorized for a crime and the penalty actually imposed in a particular case. See also S 1101(a)(43)(R) (covering commercial bribery, counterfeiting, forgery, or trafficking in vehicles with altered
vehicle identification numbers "for which the term of imprisonment is at least one year"); S 1101(a)(43)( S) (covering obstruction of justice, perjury, subornat ion of perjury, and witness bribery "for which the term of imprisonment is at least one year"). The maximum po ssible penalty and the penalty actually imposed, then, may be relevant, but there is simply no evidence that the minimum penalty ever matters in determining whether a crime is an "aggravated felony."

We conclude that when Congress amended the law it d id not intend to establish a minimum penalty threshold

. Instead, it lowered the maximum penalty required to make a theft violation an aggravated felony. Cf. United States v. Cordova-Beraud, 90 F.3d 215 (7th Cir. 1996) ("impos ed"

7refers to the particular defendant's actual record sentence,

or, if the sentence is indeterminate, its upper bou nd). Even construing the statute favorably towards Graham, th ere is
no indication that we should consider the minimum possible penalty as opposed to the penalty actually ordered by the sentencing court. We therefore reject Graham 's argument that a one-year sentence for a crime with no statutory minimum falls outside section 1101(a)(43) (G).

III. Can Misdemeanors Be Felonies?

Graham's best argument for lenity is as follows: 8 U.S.C. S 1101(a)(43)(G) defines an aggravated felony as a theft offense with a sentence of at least one year. Howev er, the statute defining the underlying offense of reentry after deportation, 8 U.S.C. S 1326(b), provides separatel y for penalties for aliens who have committed "three or m ore misdemeanors involving drugs, crimes against the pe rson, or both, or a felony (other than an aggravated felo ny)." 8 U.S.C. S 1326(b)(1). By contrast, section 1326(b)(2 ), the provision involved here, provides that an alien rem oved "subsequent to a conviction for commission of an aggravated felony" shall be fined or imprisoned for not more than 20 years. Because section 1326(b)(1) refers to certain specific misdemeanors that Congress has singled out for felony treatment and also implies that aggravated f elonies are a subset of felonies, it seems odd to hold that a misdemeanor that does not fall under section 1326(b )(1) can be an aggravated felony, as it is not a felony. Graham argues that we should assume that Congress did not intend to change the historic line between felonies and misdemeanors when it made its rather clumsy amendme nt decreasing the threshold for aggravated felonies fr om five years to one year.

This is an issue of first impression in the federal courts. In the cases cited by the government, courts interp olated "is" or "was" as the verb in the aggravated felony statute, so that it applies to crimes "for which the term of imprisonment [is] at least one year."3 But that doe s not

___________________________________________________ ______________

3. See United States v. Mendoza-Corrales, ___ F.3d ___, 1998 WL 911696, at *1 (10th Cir. Dec. 31, 1998) (using "for which t he term of

8answer the question whether section 1326(b) can app ly to

misdemeanors.

The line between felonies and misdemeanors is an ancient one. The line has not always been drawn bet ween one year and one year and a day, since it used to b e that felonies were all punishable by death. With the ris e of the penitentiary and the disappearance of the death pen alty for most felonies, however, the felony-misdemeanor dist inction solidified at the one-year line. The distinction wa s intertwined with the definition of "infamous crimes ," which came to be defined as crimes punishable by more tha n one year of confinement. The one-year mark was used by Congress as early as 1865. See United States v. Ram irez, 556 F.2d 909, 913-21 (9th Cir. 1976) (discussing, i n extensive detail, the evolution of "infamous crimes " to mean crimes punishable by more than a year's confinement ); see also Thorm v. United States, 59 F.2d 419, 419 (3d C ir. 1932) (linking "infamous crimes" with felonies and noting the consistent more-than-one-year line in federal l aw); cf. In re Mills, 135 U.S. 263 (1890) (using the more-than- one year

___________________________________________________ ______________

imprisonment [was] at least one year" when the defe ndant received a two-year sentence); United States v. Hernandez-Lope z, ___ F.3d ___, 1998 WL 874860, at *1 (10th Cir. Dec. 16, 1998) (using"f or which the term of imprisonment [is] at least one year" when the de fendant had a twoyear sentence); United States v. Pantin, 155 F.3d 9 1, 92 n.2 (2d Cir. 1998) (using "for which the term of imprisonment[is ] at least one year" when the defendant had a four-year sentence and the defendant did not dispute the aggravated felony classification), cert . denied, 67 U.S.L.W. 3436 (U.S. Jan. 11, 1999); Valderrama-Fonseca v. Im migration & Naturalization Serv., 116 F.3d 853, 855 (9th Cir. 1 997) ("any burglary offense for which the sentence of imprisonment is a t least one year" is an aggravated felony; defendant had a two-year sent ence). Interestingly, Choeum v. Immigration & Naturalization Service, 129 F.3d 29 (1st Cir. 1997), slipped back into the traditional felony/mis demeanor line when discussing the aggravated felony statute, though in that case it was clear that the immigrant's crime was a felony, as she had a three to nine year sentence. The court quoted 8 U.S.C. S 1101(a)(43)(F ), without attempting to fix its grammatical error (the same error as fou nd in S 1101(a)(43)(G)). Then, the court wrote that, because Choeum's crime satisfied the
definition of a crime of violence and "Choeum's ter m of imprisonment exceeded one year," she was guilty of an aggravated felony. Id. at 35 n.4 (emphasis added).

9rule to determine whether a sentence allowed impris onment

in a penitentiary).

Furthermore, under federal law, a felony is defined as a crime that has a maximum term of more than one year . See 18 U.S.C. S 3559(a); U.S.S.G. S 2L1.2 comment 1. Gr aham contends that felony status is an absolute requirem ent for an "aggravated felony." He also submits that Congre ss did not make clear its intent to change the long-establ ished rule that only crimes with penalties over one year are felonies when it amended section 1101(a)(43), and s o we should assume that it did not intend to change that rule. See Kalinowski, 146 F.3d at 199-200.

The government responds that Congress made its inte nt crystal clear by amending (G) to include crimes wit h a maximum one-year penalty. Yet Congress was, obvious ly, less than painstaking in amendment, and the amendme nt was designed to decrease the range from five years (fairly arbitrary) to one (a term with an historic meaning, as it has been used to distinguish misdemeanors from felonies for a very long time). The legislative history is not par ticularly helpful. The Senate Report on the amendment stated in relevant part that it "[l]owers fine and imprisonme nt thresholds in the definition (from 5 years to 1 yea r . . .), thereby broadening the coverage of . . . theft . . .." S. Rep. No. 249, 104th Cong., 1996 WL 180026. An intent to broaden the coverage of the aggravated felony class ification, however, is not necessarily an intent to include misdemeanors in that category. There is no evidence that Congress noticed that it was breaking the time-hono red line
between felonies and misdemeanors.

Because, as the government contends, the amended statute's definition of an aggravated theft felony refers to sentences actually imposed and not to potential sen tences, it is still possible for a felon to avoid being an aggravated
felon if he or she receives a six-month sentence fo r a theft crime with a maximum possible sentence over one yea r. Therefore, though Congress evidenced an intent to i ncrease the scope of the statute, it did put some limit on the punitiveness of the change. Moreover, Graham's interpretation would not render the literal wording of the statute meaningless. Some one-year sentences would still

10be aggravated felonies--those imposed for felonies, that is,

for crimes with maximum terms of more than one year

.

If we accepted Graham's argument, the affected set of defendants would be those sentenced to a full year for a misdemeanor covered by section 1101(a)(43). These a re obviously the most serious misdemeanants, and we ca n see a rational reason that Congress might include them in the class of defendants worthy of extra punishment. Des pite the force of Graham's argument, we are ultimately unwilling to cabin the clear import of the law to e xclude
from its ambit misdemeanors for which the maximum o neyear sentence was imposed.

Congress has the power to define the punishment for the crime of reentering the country after deportation, and we conclude that Congress was defining a term of art, "aggravated felony," which in this case includes ce rtain misdemeanants who receive a sentence of one year. O ur decision would be much simpler if Congress had used the term "aggravated offense." However, rather than mak ing the underlying offense conform to the label Congress erroneously used to describe section 1101(a)(43) as amended, we give effect to the definition of the un derlying offense and ignore the label. This was the practice of the federal courts for many years under previous incarn ations of federal law, as we demonstrate in the margin. 4 Congress

___________________________________________________ ______________

4. 18 U.S.C. S 1, now repealed, stated: "Notwithsta nding any Act of Congress to the contrary: (1) Any offense punishabl e by death or imprisonment for a term exceeding one year is a fel ony. (2) Any other offense is a misdemeanor." The problem that spurred its enactment was that Congress was occasionally less than exacting i n its definition of federal crimes. Congress would pass a substantive c riminal law, labelling it a "misdemeanor" but providing for five years' im prisonment. The Revisor's Note of 1948 noted that, at the time S 1 replaced its predecessor, there were at least thirty occurrences of such penalties whose labels were inconsistent with the punishments actually authorized. See 8 U.S.C.A. S 1 Revisor's Note, at 5 0 (1969).

When those inconsistencies were argued in federal c ourt, courts generally held that the overarching felony/misdemea nor definition controlled, so that a particular statute's label wo uld be overridden if it
was inconsistent with the "real" definition of a fe lony or misdemeanor.

11could avoid this confusion by reenacting the releva nt

portion of 18 U.S.C. S 1, which would make clear th at the felony/misdemeanor labels in a particular criminal law are less important than the imprisonment actually autho rized by that law.5

___________________________________________________ ______________

See Loos v. Hardwick, 224 F.2d 442 (5th Cir. 1955) (treating a crime as a felony despite statutory "misdemeanor" language b ecause the term was more than a year); Sheridan v. United States, 236 F . 305 (9th Cir. 1916) (same); Hoss v. United States, 232 F. 328 (8th Cir. 1916) (same); United States v. York, 131 F. 323 (C.C.S.D.N.Y. 1904) (tre ating a crime as a misdemeanor despite statutory "felony" language bec ause the crime had not actually been made a felony); United States v. Green, 140 F. Supp. 117, 120 (S.D.N.Y. 1956) ("[S 1] provides. . . that if the allowable punishment is one year or less, the crime is a misd emeanor. Thus, it is the penalty which governs the classification and no t any characterization or classification given by the Common Law or by a s tatute which governs the penalty."), aff 'd, 241 F.2d 631 (2d Cir. 1957) , aff 'd, 356 U.S. 165 (1958). But see United States v. Chapman, 3 F. Supp . 900, 901 (S.D. Ala. 1931) (treating a crime labelled a "misdemeanor" in the substantive law as a misdemeanor despite the fact that the maximum penalty was more than a year, reasoning that the general rule only a pplied where the specific statute at issue failed to label an offens e). The "notwithstanding any Act of Congress to the contrary" language, adde d in 1948 to the 1909 definition that was otherwise left untouched, affirmed the majority
view of the courts.

5. 18 U.S.C. S 1, which used to define felonies and misdemeanors, was repealed in 1984 when 18 U.S.C. S 3559 replaced it. The legislative history suggests that S 3559 was enacted to put the definitions of felony and misdemeanor within the sentencing part of the s tatute and to create subdivisions within the felony and misdemeanor cate gories, consistent
with the reformers' desire to create clear sentenci ng categories. Thus,

the repeal seems to have been mostly a matter of housek eeping. See S. Rep. No. 225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182 , 1983 WL 25404 (Leg. Hist.) ("Section 3559 specifies how the class ification system

created in Section 3581(b) applies to offenses that are not specifically graded by letter grade."). This interpretation is supported b y the fact that S 1 was repealed as unnecessary while the Senate Report wen t on to say that proposed S 3559 had no counterpart in current feder al law, because federal law did not at the time classify within the felony and misdemeanor categories. See id. That statement woul d only make sense
if the sole aim of the the switch from S 1 toS 3559 was the addition of
classes of felonies and misdemeanors to federal law

.

12The aggravated felon classification has serious

consequences for those subject to it, as this case demonstrates. Many members of Congress have been prosecutors and criminal defense lawyers, with a li kely respect for the venerable divide between felonies a nd misdemeanors. They might wish to revisit the issue or at least obviate the difficult question posed by this case with more careful drafting.6 However, because Graham's p etit larceny sentence qualified him as an "aggravated fe lon," we will affirm the judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

6. The Clerk of the Court is directed to send a cop y of this opinion to

the Assistant Attorney General in charge of the Crimina l Division, the Ranking Members and the Majority and Minority Couns el of the House and Senate Judiciary Committees.
13