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. e du/thir dc ir c uit_2002/161PRECEDENTIAL

Filed March 8, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2180

MIKHAIL BOVKUN,
Petitioner

v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, Respondent

ON PETITION FOR REVIEW

OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

UNITED STATES IMMIGRATION AND NATURALIZATION

SERVICE

Argued: January 17, 2002

Before: ALITO and ROTH, Circuit Judges, and SCHWARZER,* Senior District Judge

(Filed: March 8, 2002)

___________________________________________________ ______________ * The Honorable William W Schwarzer, Senior Distric t Judge for the Northern District of California, sitting by designation.Tatiana S. Aristova, Esq. (Argued)

1760 Market St., Suite 1100 Philadelphia, PA 19103

Counsel for Petitioner

David V. Bernal
Assistant Director Nelda C. Reyna (Argued) Trial Attorney Lyle D. Jentzer U.S. Department of Justice Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station Washington, D.C. 20004

Counsel for Respondent

OPINION OF THE COURT

ALITO, Circuit Judge:

This is a petition for review of a final administra tive order of removal issued by the Immigration and Naturaliza tion Service under Section 238(b) of the Immigration and Nationality Act ("INA"), 8 U.S.C. S 1228(b). The re spondent contends that we lack jurisdiction to entertain thi s petition by virtue of INA Section 242(a)(2)(C), 8 U.S.C. S 1252(a)(2)(C), which deprives us of jurisdiction to review a final administrative order of removal if the petiti oner is "an alien who is removable by reason of having committe d," inter alia, "a criminal offense covered in[8 U.S.C. S 1227(a)(2)(A)(iii)]." We have held, however, that in a case such as this we may properly review the threshold q uestion whether a petitioner has been convicted of an offen se that deprives us of jurisdiction. See Drakes v. Zimski, 240 F.3d 246 (3d Cir. 2001). We thus examine that question a nd hold that the petitioner has been convicted of such an offense.

2I.

The petitioner, a citizen of Ukraine, was paroled i nto the
United States in 1992 but was never admitted for la wful permanent residence. In February 1998, he was charg ed by criminal complaint in the Court of Common Pleas of Erie County Pennsylvania with the crime of making terror istic threats, in violation of 18 Pa. Cons. Stat. S 2706 (1998).2 The complaint charged that the petitioner had threa tened to kidnap and kill the child of a police officer. I t stated that this threat was made "in an attempt to stop [the of ficer] from taking official action in his capacity as a po lice officer, to wit: arrest the defendant on outstanding warrant s." App. at 56. In October 1998, the petitioner pled guilty to this offense and was sentenced to imprisonment for 11 to 23
months.

In October 2000, the Immigration and Naturalization Service instituted expedited removal proceedings ag ainst the petitioner under INA S 238(b), 8 U.S.C.S 1228(b ), by serving him with a Notice of Intent to Issue Final Administrative Removal Order ("the Notice"). App. a t 7. The Notice recited the following:

You were, on November 22, 1999, convicted in the Court of Common Pleas for Erie County, Penns ylvania
for the offense of Terroristic Threats in vi olation Section 2706 of the Pennsylvania Criminal Code for w hich the term of imprisonment imposed was 11 and one- half
months to 23 months.

App. at 7. Under the caption "Charge," the Notice s tated: "You are deportable under section 237(a)(2)(A)(iii) of the [INA], as amended, because you have been convicted of an aggravated felony as defined in section 101(a)(43) (G) of the Act, 8 U.S.C. S 1101(a)(43)" (emphasis added). App. at 7. Thereafter, a final administrative removal order wa s issued under INA S 238(b). App. at 1. In this order, the a cting district director found, among other things, that t he petitioner had "a final conviction of an aggravated felony as defined in section 101(a)(43)(G) of the[INA], 8 U.S .C.

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2. The complaint also charged a violation of 18 Pa. Cons. Stat. S 2906(a)(1), criminal coercion.

31101(a)(43)" (emphasis added). App. at 1. This peti tion

followed.

II.

A. Jurisdiction To Review A Final Administrative Or der Of
Removal

Under INA Section 242(a)(2)(C), 8 U.S.C. S 1252(a)( 2)(C), we lack jurisdiction to review petitioner's final
administrative order of removal if he is "an alien who is removable by reason of having committed," inter ali a, "a criminal offense covered in [8 U.S.C. S 1227(a)(2)( A)(iii)]." This latter provision states that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. S 1227(a)(2)(A)( iii). The term "aggravated felony" includes "a crime of viole nce (as defined in section 16 of Title 18, but not includin g a purely political offense) for which the term of imprisonme nt [sic] at least one year."3 8 U.S.C.S 1101 (a)(43)(F). Under 18 U.S.C. S 16(a), an offense is a "crime of violence" if it "has as an element the use, attempted use, or threatened use o f physical force against the person or property of an other." Thus, if the petitioner in this case has been convi cted of an offense that has such an element, we lack jurisdict ion to entertain his petition for review.

B. Erroneous Citation In Final Administrative Order Is Not Prejudicial

The petitioner first argues that the final administ rative
order of removal is flawed because it found that th e petitioner was convicted of "an aggravated felony a s defined in section 101(a)(43)(G)" (hereinafter INA "subsect ion (G)"). Subsection (G) states that the term "aggravated fel ony" encompasses "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [sic] at least one year." 8 U.S.C. 1101(a)(43)(G). Since the crime of making terrorist ic threats is obviously not "a theft offense", the petitioner contends

___________________________________________________ ______________

3. There is a "scrivener's error" in this provision . See United States v. Graham, 169 F.3d 787, 790 (3d Cir. 1999).

4that the final administrative order of removal rest s upon a

plainly incorrect finding.

The respondent contends that the citation to subsec tion (G) was a clerical error and that it is apparent th at the order meant to refer to INA S 101 (a)(43)(F), which provides that the term "aggravated felony" includes"a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [sic] at least one year." 8 U.S.C. 1101(a)(43)(F). The respondent points out that the Notice recited that removal was being sought based on the petitioner's conviction for making terroristic thre ats, not a theft offense, and that the petitioner was not prej udiced in any way by the clerical error.

We agree with the respondent that the erroneous cit ation in the order of removal cannot surmount the jurisdi ctional restriction in INA S 242(a)(2)(C), 8 U.S.C.S 1252(a )(2)(C). The petitioner does not dispute the fact that he wa s convicted for the offense of making terroristic thr eats; he does not allege that the erroneous citation confuse d him regarding the basis on which deportation was being sought or that he was prejudiced by the citation in any ot her way; and he has not cited any authority for the proposit ion that an error of this type is sufficient to permit us to entertain his petition.

Under these circumstances, we hold that the obvious ly
erroneous citation is insufficient to circumvent th e jurisdictional restriction in INA S 242(a)(2)(C), 8 U.S.C. S 1252(a)(2)(C). Even in a criminal indictment-- wh ere formality of pleading is at its height -- an error in the citation of the charged offense "shall not be groun d for
dismissal of the indictment . . . or for reversal o f a
conviction if the error . . . did not mislead the d efendant to the defendant's prejudice." Fed. R. Crim. Proc. 7(c )(3). It would be anomalous to apply a stricter rule in this context. We thus reject the petitioner's argument regarding the citation and move on to the chief issue in this pro ceeding, namely, whether the petitioner's conviction for mak ing terroristic threats qualifies as a crime of violenc e.

5C. Conviction For Making Terroristic Threats Meets Definition

Of "Crime Of Violence"

As noted, the term "crime of violence" is defined i n 18 U.S.C. S 16(a) to mean, among other things,"an offe nse that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." At the time of the petitioner 's conviction,4 the crime of making terroristic threat s was defined as follows:

A person is guilty of a misdemeanor of the f irst degree if he threatens to commit any crime of viole nce with
intent to terrorize another or to cause evac uation of a building, place of assembly, or facility of public transportation, or otherwise to cause seriou s public inconvenience, or in reckless disregard of t he risk of causing such terror or inconvenience.

18 Pa. Cons. Stat. S 2706 (1998).

The petitioner argues that his conviction for terro ristic threats does not qualify as a "crime of violence" b ecause S 2706 did not necessarily require "the use, attemp ted use, or threatened use of physical force." Instead, the petitioner contends, "[m]ere `public inconvenience,' or `reckl ess disregard' of `causing such inconvenience' would be sufficient." Pet. Br. at 9. The petitioner's readin g of S 2706
confuses its actus reus and its mens rea.

The actus reus of this offense is a "threat[ ] to c ommit a crime of violence," and the mens rea is either (1) the intent to terrorize another or reckless disregard of causi ng such terror or (2) the intent to cause, or reckless disr egard of the risk of causing, either (a) the evacuation of certa in facilities (a building, place of assembly, or facility of publ ic transportation) or (b) some other serious public
inconvenience. Because the actus reus must be shown in every case, Section 2706 always demands proof of a "threat[ ] to commit a crime of violence." The Penn sylvania

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4. As a result of amendment in 1998, the language n oted in the text has been designated as 18 Pa. Cons. Stat. S 2706(a) and has been subdivided into subsections (1)-(3). It does not appear, howev er, that the meaning of the provision was altered.

6Legislature has not defined the meaning of the term "crime

of violence" as it is used in Section 2706, and the refore the term is to be "construed according to the fair impo rt of [its] terms." 18 Pa. Cons. Stat. S 105; see also Commonwe alth v. Ferrer, 423 A.2d 423, 424 (Super. Ct. 1980). We hav e found no state case holding that the term, as used in Sec tion 2706, includes any offense that does not have as an element "the use, attempted use, or threatened use of physical force against the person or property of an other." 18 U.S.C. S 16(a). We thus hold that the petitioner 's conviction for making terroristic threats meets the definition in 18 U.S.C. S 16(a).5

D. "Term Of Imprisonment" Is At Least One Year

The petitioner argues that his offense does not qua lify as one "for which the term of imprisonment [sic] at le ast one year" because his minimum sentence was 11 months. W e disagree.

In United States v. Graham, 169 F.3d 787 (3d Cir. 1 999), we noted that INA S 101(a)(43)(G), 8 U.S.C.S 1101(a )(43)(G),
which also refers to an offense "for which the term of imprisonment [sic] at least one year,""is obviously missing
a crucial verb." 163 F.3d at 789. We went on to int erpret this phrase to refer to the term of imprisonment th at is actually imposed and not to the statutory minimum, as the defendant in Graham suggested. 169 F.3d at 789-90. The provision at issue in the case now before us, INA S 101(a)(43)(F), 8 U.S.C. S 1101(a)(43)(F), contain s the same language and the same scrivener's error as the prov ision in Graham, and thus Graham's analysis governs here. We must therefore determine what is the term of impris onment actually imposed when the sentence specifies a mini mum and maximum sentence.

In doing this, we believe that we should attempt to
ensure that a sentence with both a minimum and a

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5. Section 2706 derives from the Model Penal Code, which describes it as one of "[t]he offenses . . . deal[ing] with bodily injury short of
homicide and with certain other situations where such injury is attempted, threatened or risked." Model Penal Code Pt. II, Art . 211, Explanatory note for sections 211-211.3 (1985).

7maximum term is treated comparably with a functiona lly

equivalent sentence with only a maximum term. Takin g this approach, we believe that the petitioner's Pennsylv ania sentence is comparable to a simple sentence of 23 m onths. "Under Pennsylvania law, the minimum term imposed o n a prison sentence merely sets the date prior to which a prisoner may not be paroled." Rogers v. Pennsylvani a Bd. of Probation & Parole, 724 A.2d 319, 321 n. 2 (Pa. 199 9) (emphasis in original deleted); see also 61 Pa. Con s. Stat. S 331.21. Accordingly, petitioner's sentence of 11 to 23
months meant that he had to serve at least 11 month s and
would not serve more than 23 months. This sentence was functionally the same as a sentence of 23 months, w ith parole eligibility beginning after 11 months. By co ntrast, petitioner's sentence was not at all comparable to a simple sentence of 11 months. Under a simple sentence of 1 1 months, he would have been guaranteed release from prison at the expiration of 11 months, and upon rel ease he would not have been subject to any of the restricti ons that commonly accompany parole. We therefore treat the petitioner's sentence for present purposes as if it were a simple sentence of 23 months, and thus the sentence actually imposed was obviously for more than one ye ar.

E. Misdemeanor Under State Law May Constitute An Aggravated Felony

The petitioner's final argument is that his convict ion for making terroristic threats was not an "aggravated f elony" because the offense is graded as a misdemeanor unde r state law.6 This argument is foreclosed by our hold ing in

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6. In making this argument, the petitioner relies o n the Board of Immigration Appeals' decision in In re Robin Jurain e Crammond, 23 I & N Dec. 9 (BIA Mar. 22, 2001) ("Crammond I"), in whi ch the BIA held that under INA S 101(a)(43)(A), 8 U.S.C. S 1101(a)(43)(A ), an offense must be a felony under state law to qualify as an "aggravat ed felony." We note, however, that the BIA later vacated Crammond I . Se e In re Robin Juraine Crammond, 23 I & N Dec. 179 (BIA Oct. 16, 2001). Mo reover, Crammond I concerned the interpretation of a provision, INA S 101(a)(43)(A), 8

U.S.C. S 1101(a)(43)(A), that lacks the requirement that a sentence of at least one year be imposed. The effect of Crammond I was to prevent crimes that were regarded by the jurisdiction of convictio n as relatively minor from being treated as aggravated felonies for immig ration purposes. Under the provision at issue in the present case, t he requirement that a sentence of at least one year be imposed serves thi s purpose.

8Graham that a conviction for a state misdemeanor ma y

constitute an "aggravated felony" under INA Section 101(a)(43)(G), 8 U.S.C. S 1101(a)(43)(G), if a term of imprisonment of at least one year is imposed. As pr eviously noted, the critical language in the statutory provi sion that is relevant here, INA S 101(a)(43)(F), 8 U.S.C. S 1101(a)(43)(F), is identical to the language of t he provision construed in Graham, and consequently Graham is controlling in this case.

III.

For the reasons explained above, we hold that the petitioner is an alien who is removable by reason o f having committed a crime of violence, and we therefore lac k jurisdiction to entertain his petition. Thus, his p etition for
review is dismissed.

A True Copy:

Teste:

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

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