1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-5-1999

USA v. Graham

Precedential or Non-Precedential:

Docket 98-1556

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Graham" (1999). 1999 Decisions. Paper 58.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/58
Filed 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, technically 

speaking, a felony at all. The particular question before us 

is whether petit larceny, a class A misdemeanor under New 

York law that carries a maximum sentence of one year, can 

subject a federal defendant to the extreme sanctions 

imposed by the "aggravated felon" classification. Despite 

 2 
our misgivings that, in pursuit of a clearly defined 

legislative goal (to severely punish unlawful reentry into 

this country), a carelessly drafted piece of legislation has 

improvidently, if not inadvertently, broken the historic line 

of division between felonies and misdemeanors, we 

conclude that Congress was sufficiently clear in its intent to 

include certain crimes with one-year sentences in the 

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 those 

penalties. We think that in this case Congress's definition 

requires a finding that this defendant was an aggravated 

felon, though not a felon in the conventional sense, and 

therefore we will affirm the judgment of the District Court, 

which sentenced Winston Graham in accordance with that 

approach. 

I. Facts & Procedural History 

Graham was deported in 1996 after serving a previous 

sentence for reentering the country after his deportation in 

1990. He returned to the United States without permission 

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 deportation, 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 1986, 

he was convicted of unlawful possession of marijuana, a 

violation with a maximum fine of $100, stemming from a 

November 1985 arrest. In May 1986, he was convicted of 

attempted possession of marijuana, a Class B misdemeanor 

with a maximum of three months' imprisonment, stemming 

from a November 1984 arrest. Finally, in May 1990, he was 

convicted of petit larceny, a Class A misdemeanor with a 

maximum of a year's imprisonment under New York law. 

See N.Y. Penal Law S 155.25 (McKinney 1997). He received 

a sentence of one year. 

Congress has classified certain crimes as "aggravated 

felonies" for purposes of immigration and deportation. See 

 3 
8 U.S.C. S 1101(a)(43). In this case, the aggravated 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 felony 

definitions of 8 U.S.C. S 1101(a)(43)). The District Court 

found that Graham's second drug conviction and his petit 

larceny conviction should be classified as aggravated 

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 had a 

prior drug possession conviction, his second conviction 

would have been a federal felony. However, because the 

conduct underlying Graham's second possession conviction 

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 appeal, 

and therefore we need not resolve the question of whether 

this "hypothetical federal felony" treatment is appropriate. 

We may still uphold Graham's sentence in its entirety, 

however, because if even one of Graham's prior convictions 

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 defines 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 supports 

Graham's claim. Therefore, he argues that due process 

concerns and the rule of lenity, which requires ambiguous 

statutes to be construed in favor of defendants, support his 

claim.1 Graham also contends that the uses of "aggravated 

_________________________________________________________________ 

1. Graham also argues that collateral estoppel applies. We reject this 

contention. In his prior unlawful reentry prosecution, the District Court 

added four points to his criminal history instead of sixteen, based on the 

 4 
felony" elsewhere in Title 8 make clear that an "aggravated 

felony" must first be a felony. While we reject both 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 felony "a 

theft offense . . . for which the term of imprisonment 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 the term of 

imprisonment is at least one year" or to theft offenses "for 

which the term of imprisonment imposed is at least one 

year." He then argues that, because we should interpret 

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 term, 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 statute to 

increase a penalty when the interpretation can be based 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 law governing the 

definition of aggravated felonies means that the issues are no longer the 

same, and therefore collateral estoppel cannot apply. 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 to change "five" to 

"one." Furthermore, the government did not object to the presentence 

report in the previous sentencing proceeding and the district judge 

adopted the report and its findings in its entirety. The matter was thus 

not actually litigated in the previous sentencing proceeding. 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). 

 5 
However, the rule of lenity does not apply simply because 

a statute requires interpretation. See Caron v. United 

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 quotation marks 

omitted)). Courts will also consider other clear provisions 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 its 

amendment in 1996, section 1101(43)(G) defined 

"aggravated felony" in relevant part as "a theft offense . . . 

for which the term of imprisonment imposed (regardless of 

any suspension of such imprisonment) is at leastfive 

years." The reference was clearly to the term imposed and 

not to the statutory minimum. Although the 1996 

amendments created a typographical error by inadvertently 

removing the verb, there is no evidence that Congress 

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 potential 

maximum might have been. What Graham really wants us 

to do is to imply the word "minimum" into the statute, so 

that the minimum term provided for by law would have to 

be at least one year to constitute an aggravated felony. 

The statute, however, never suggests that the proper 

referent is a crime's statutory minimum. As part of the 

1996 amendments, Congress added a definitional provision 

at section 1101(a)(48)(B), providing that "[a]ny reference [in 

S 1101(a)] to a 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 in whole or in part."2 This 

_________________________________________________________________ 

2. A further conforming amendment deleted the phrase "imposed 

(regardless of any suspension of imprisonment)" each place it appeared 

in 8 U.S.C. S 1101(a)(43)(F), (G), (N), and (P). 

 6 
suggests 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 imposed as 

opposed to one that is imposed. See S 1101(a)(43)(J) 

(covering racketeering and gambling crimes "for which a 

sentence of one year imprisonment or more may be 

imposed"); S 1101(a)(43)(T) ("an offense relating to a failure 

to appear before a court . . . for which a sentence of 2 

years' imprisonment or more may be imposed"). Graham is 

correct that the "may be imposed" language of these

provisions is inconsistent with a reading of section 

1101(a)(48)(B) that would insist that every reference to a 

"term of imprisonment" refers to the term actually imposed. 

It is reasonable to read section 1101(a)(48)(B) instead 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 some 

provisions of section 1101(a)(43) refer to a term that "may 

be imposed" while others refer to crimes "for which the term 

of imprisonment is at least 12 months," S 1101(a)(43)(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, subornation of 

perjury, and witness bribery "for which the term of

imprisonment is at least one year"). The maximum possible 

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 did 

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) ("imposed" 

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

or, if the sentence is indeterminate, its upper bound). Even 

construing the statute favorably towards Graham, there 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. However, the 

statute defining the underlying offense of reentry after 

deportation, 8 U.S.C. S 1326(b), provides separately for 

penalties for aliens who have committed "three or more 

misdemeanors involving drugs, crimes against the person, 

or both, or a felony (other than an aggravated felony)." 8 

U.S.C. S 1326(b)(1). By contrast, section 1326(b)(2), the 

provision involved here, provides that an alien removed 

"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 felonies 

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 amendment 

decreasing the threshold for aggravated felonies from five 

years to one year. 

This is an issue of first impression in the federal courts. 

In the cases cited by the government, courts interpolated 

"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 does not 

_________________________________________________________________ 

3. See United States v. Mendoza-Corrales, ___ F.3d ___, 1998 WL 911696, 

at *1 (10th Cir. Dec. 31, 1998) (using "for which the term of 

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

misdemeanors. 

The line between felonies and misdemeanors is an 

ancient one. The line has not always been drawn between 

one year and one year and a day, since it used to be that 

felonies were all punishable by death. With the rise of the 

penitentiary and the disappearance of the death penalty for 

most felonies, however, the felony-misdemeanor distinction 

solidified at the one-year line. The distinction was 

intertwined with the definition of "infamous crimes," which 

came to be defined as crimes punishable by more than one 

year of confinement. The one-year mark was used by 

Congress as early as 1865. See United States v. Ramirez, 

556 F.2d 909, 913-21 (9th Cir. 1976) (discussing, in 

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 Cir. 

1932) (linking "infamous crimes" with felonies and noting 

the consistent more-than-one-year line in federal law); cf. In 

re Mills, 135 U.S. 263 (1890) (using the more-than-one year 

_________________________________________________________________ 

imprisonment [was] at least one year" when the defendant received a 

two-year sentence); United States v. Hernandez-Lopez, ___ F.3d ___, 1998 

WL 874860, at *1 (10th Cir. Dec. 16, 1998) (using"for which the term 

of imprisonment [is] at least one year" when the defendant had a twoyear sentence); United States v. Pantin, 155 F.3d 91, 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. Immigration & 

Naturalization Serv., 116 F.3d 853, 855 (9th Cir. 1997) ("any burglary 

offense for which the sentence of imprisonment is at least one year" is 

an aggravated felony; defendant had a two-year sentence). Interestingly, 

Choeum v. Immigration & Naturalization Service, 129 F.3d 29 (1st Cir. 

1997), slipped back into the traditional felony/misdemeanor 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 found 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 term of imprisonment 

exceeded one year," she was guilty of an aggravated felony. Id. at 35 n.4 

(emphasis added). 

 9 
rule to determine whether a sentence allowed imprisonment 

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. Graham 

contends that felony status is an absolute requirement for 

an "aggravated felony." He also submits that Congress did 

not make clear its intent to change the long-established 

rule that only crimes with penalties over one year are 

felonies when it amended section 1101(a)(43), and so 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 intent 

crystal clear by amending (G) to include crimes with a 

maximum one-year penalty. Yet Congress was, obviously, 

less than painstaking in amendment, and the amendment 

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 particularly 

helpful. The Senate Report on the amendment stated in 

relevant part that it "[l]owers fine and imprisonment 

thresholds in the definition (from 5 years to 1 year . . .), 

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 classification, 

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-honored 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 sentences, 

it is still possible for a felon to avoid being an aggravated 

felon if he or she receives a six-month sentence for a theft 

crime with a maximum possible sentence over one year. 

Therefore, though Congress evidenced an intent to increase 

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 

 10 
be 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 are 

obviously the most serious misdemeanants, and we can see 

a rational reason that Congress might include them in the 

class of defendants worthy of extra punishment. Despite 

the force of Graham's argument, we are ultimately 

unwilling to cabin the clear import of the law to exclude 

from its ambit misdemeanors for which the maximum oneyear 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 certain 

misdemeanants who receive a sentence of one year. Our 

decision would be much simpler if Congress had used the 

term "aggravated offense." However, rather than making 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 underlying 

offense and ignore the label. This was the practice of the 

federal courts for many years under previous incarnations 

of federal law, as we demonstrate in the margin. 4 Congress 

_________________________________________________________________ 

4. 18 U.S.C. S 1, now repealed, stated: "Notwithstanding any Act of 

Congress to the contrary: (1) Any offense punishable by death or 

imprisonment for a term exceeding one year is a felony. (2) Any other 

offense is a misdemeanor." The problem that spurred its enactment was 

that Congress was occasionally less than exacting in its definition of 

federal crimes. Congress would pass a substantive criminal law, labelling 

it a "misdemeanor" but providing for five years' imprisonment. 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 50 (1969). 

When those inconsistencies were argued in federal court, courts 

generally held that the overarching felony/misdemeanor definition 

controlled, so that a particular statute's label would be overridden if it 

was inconsistent with the "real" definition of a felony or misdemeanor. 

 11 
could avoid this confusion by reenacting the relevant 

portion of 18 U.S.C. S 1, which would make clear that the 

felony/misdemeanor labels in a particular criminal law are 

less important than the imprisonment actually authorized 

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 because 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) (treating a crime as a 

misdemeanor despite statutory "felony" language because 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 misdemeanor. Thus, it is 

the penalty which governs the classification and not any characterization 

or classification given by the Common Law or by a statute 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 applied where the 

specific statute at issue failed to label an offense). The 

"notwithstanding 

any Act of Congress to the contrary" language, added 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 statute and to create 

subdivisions within the felony and misdemeanor categories, consistent 

with the reformers' desire to create clear sentencing categories. Thus, 

the 

repeal seems to have been mostly a matter of housekeeping. 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 classification system 

created 

in Section 3581(b) applies to offenses that are not specifically graded by 

letter grade."). This interpretation is supported by the fact that S 1 was 

repealed as unnecessary while the Senate Report went on to say that 

proposed S 3559 had no counterpart in current federal law, because 

federal law did not at the time classify within the felony and 

misdemeanor categories. See id. That statement would 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. 

 12 
The 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 likely 

respect for the venerable divide between felonies and 

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 petit 

larceny sentence qualified him as an "aggravated felon," 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 copy of this opinion to 

the 

Assistant Attorney General in charge of the Criminal Division, the 

Ranking Members and the Majority and Minority Counsel of the House 

and Senate Judiciary Committees. 

 13