United States v. Graham

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

3-5-1999

USA v. Graham

Precedential or Non-Precedential:

Docket 98-1556

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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

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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 two-

year 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 one-

year 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