                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-6-2006

USA v. Lovett
Precedential or Non-Precedential: Precedential

Docket No. 05-4171




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Lovett" (2006). 2006 Decisions. Paper 147.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/147


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 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                         PRECEDENTIAL

    IN THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                     Case No: 05-4171

             UNITED STATES OF AMERICA

                              v.

                 BRIAN T. LOVETT, JR.,

                             Appellant


      On Appeal from the United States District Court
         for the Western District of Pennsylvania
                District Court No.: 04-CR-32
       District Judge: The Honorable Kim R. Gibson


     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                    October 24, 2006

  Before: SMITH, FISHER, and COWEN, Circuit Judges

                 (Filed: November 6, 2006)

Karen S. Gerlach
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
       Counsel for Appellant

Laura S. Irwin
Kelly R. Labby
Office of United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219
       Counsel for Appellee




                           OPINION


SMITH, Circuit Judge.

       Brian T. Lovett, Jr. pleaded guilty on March 24, 2005, to
making a false statement to a federally licensed firearms dealer
in violation of 18 U.S.C. § 922(a)(6), an offense subject to a
maximum term of imprisonment of ten years and a maximum of
three years of supervised release. See 18 U.S.C. § 924(a)(2).
Prior to sentencing, Lovett challenged, inter alia, the pre-
sentence report (PSR) statement that his offense was a Class C
felony subject to a three year term of supervised release under
18 U.S.C. § 3583(b)(2). In a memorandum, the United States
District Court for the Western District of Pennsylvania initially
sustained Lovett’s objection, stating that Lovett’s offense of

                               2
conviction exposed him to a term of supervised release of no
more than one year.        The District Court amended its
memorandum shortly thereafter, reversing itself and clarifying
that the statutory maximum term of supervised release was in
fact three years under 18 U.S.C. §§ 922(a)(6), 924(a)(2),
3559(a)(3), and 3583(b)(2). The Court sentenced Lovett to a 16
month term of imprisonment and a three year period of
supervised release. This timely appeal followed.1

       Lovett challenges only the imposition of a three year
period of supervised release. Lovett acknowledges that 18
U.S.C. § 3559(a) determines the letter classification of his
criminal offense based on the “maximum term or imprisonment
authorized . . . .” He also agrees that the letter classification
governs the maximum term of supervised release under 18
U.S.C. § 3583(b)(2). Because he committed his offense of
conviction before the Supreme Court issued its opinion in
United States v. Booker, 543 U.S. 220 (2005), Lovett argues that
under § 3559(a) the “maximum term of imprisonment
authorized” should have been computed based on his maximum
term of imprisonment under the then mandatory United States
Sentencing Guidelines, not the statutory maximum term of ten
years. Thus, he submits that, consistent with his guideline range


    1
     The District Court exercised jurisdiction pursuant to 18
U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper,
437 F.3d 324, 327-28 (3d Cir. 2006).

                               3
of twelve to eighteen months, his offense under § 3559(a)
should have been classified as a Class E felony for which the
term of supervised release should not have exceeded one year,
instead of a Class C felony subject to not more than three years
of supervised release. See 18 U.S.C. § 3559(a). According to
Lovett, the imposition of this longer three year term of
supervised release violates the Sixth Amendment and constitutes
an ex post facto violation of the Due Process Clause.

        We conclude that the District Court correctly classified
Lovett’s offense as a Class C felony subject to a maximum of
three years of supervised release. “As in all statutory
construction cases, we begin with the language of the statute.
The first step is to determine whether the language at issue has
a plain and unambiguous meaning with regard to the particular
dispute in the case. The inquiry ceases if the statutory language
is unambiguous and the statutory scheme is coherent and
consistent.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450
(2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997) (internal quotation marks omitted)); see also Estate of
Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)
(instructing that “[i]n a statutory construction case, the
beginning point must be the language of the statute, and when
a statute speaks with clarity to an issue judicial inquiry into the
statute’s meaning, in all but the most extraordinary
circumstance, is finished”).

       Section 3559(a) of the Federal Crimes Code classifies

                                4
federal crimes by letter grades “A” through “E.” 18 U.S.C. §
3559(a). Some of the statutory provisions in the Federal Crimes
Code specifically set out the letter grade of the felony at issue.2
If the statute of conviction does not designate the letter grade of
the offense, § 3559(a) specifies that the classification is based
on the “maximum term of imprisonment authorized . . . .”

        The plain text of § 3559(a) begins and ends our analysis
of whether this section’s use of the phrase “maximum term of
imprisonment authorized” means the defendant’s own guideline
range or the statutory maximum term of imprisonment. Section
3559(a) provides that an “offense that is not specifically
classified by a letter grade in the section defining it, is classified
[based on] the maximum term of imprisonment authorized . . .




   2
     See 18 U.S.C. § 474 (providing that the counterfeiting of
obligations and securities is a Class B felony); 18 U.S.C. § 474A
(providing that persons are guilty of a Class B felony if they
control or possess certain distinctive paper or the ink, watermark
or seal of U.S. currency); 18 U.S.C. § 514 (providing that the
uttering of counterfeit obligations is a Class B felony); 16
U.S.C. § 4711(g)(2) (making violation of regulations regarding
the prevention of aquatic nuisances into U.S. waters a Class C
felony); 33 U.S.C. § 1232 (making the violation of the chapter
or regulations pertaining to ports and waterways safety a Class
D felony).

                                  5
.” 3 Thus, the classification process begins by identifying the
“offense” of conviction and determining whether the applicable
letter grade has been designated. If not, one must refer to the
“maximum term of imprisonment authorized.” The statute
specifically directs that the first step is to consult “the section
defining” the criminal offense to determine if a letter grade has
been assigned. If not, the “maximum term of imprisonment
authorized” is used to arrive at the proper classification.

       Lovett asserts, without any supporting authority, that the
maximum term of imprisonment refers to the maximum
guideline range. This construction, however, ignores the plain
text of the statute that starts the classification process by
reference to the “section defining” the criminal offense. The
phrase “the section defining it” can refer only to the Federal
Crimes Code as the sentencing guidelines neither define


   3
   Section 3559(a) provides, in relevant part:
      An offense that is not specifically classified by a letter
      grade in the section defining it, is classified if the
      maximum term of imprisonment authorized is –
      (1) life imprisonment, or if the maximum penalty is
      death, as a Class A felony;
      (2) twenty - five years or more, as a Class B felony;
      (3) less than twenty-five years but ten or more years, as
      a Class C felony;
      (4) less than ten years but five or more years, as a Class
      D felony . . . .
18 U.S.C. § 3559(a).

                                6
criminal offenses, nor classify such offenses by letter grade.

       If a letter grade has been assigned by “the section
defining it,” the inquiry is at an end. If no letter grade has been
designated by the statute of conviction, the reference to “the
section defining it” is not without purpose. The “maximum term
of imprisonment authorized,” if contained in that particular
statutory provision, will provide the information necessary to
properly classify the offense.

       This process is straightforward. There is no need to
consult more than the “section defining” the criminal offense
and ascertain the “maximum term of imprisonment authorized.”
Noticeably absent from the text of the statute, which was
enacted as part of the Sentencing Reform Act of 1984 creating
the guidelines, is any language contemplating that the
sentencing guidelines must be consulted at some point in this
process to arrive at the “maximum term of imprisonment
authorized.” We should not read into the statute an interpretive
process which is not plainly included therein. See Board of
Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458
U.S. 176, 190 n.11 (1982) (observing that “Congress expresses
its purpose by words. It is for us to ascertain – neither to add
nor to subtract, neither to delete nor to distort”) (internal
quotation marks and citation omitted).

       Our interpretation of § 3559(a) is consistent with that of
several of our sister courts of appeals. In United States v.

                                7
Cunningham, 292 F.3d 115 (2nd Cir. 2002), the defendant
argued that his guideline range should govern the offense
classification, as opposed to the statutory maximum. The Court
found that the “argument is wholly without support. We think
a plain reading of § 3559 demonstrates that the maximum term
of imprisonment authorized refers to the statutory maximum of
the offense and not a defendant’s personal Guideline range.” Id.
at 118. Furthermore, it reasoned that subsections (a) and (b) of
§ 3559 “should be read consistently.” Id. It pointed out that
subsection (b) specifies that the “maximum term of
imprisonment is the term authorized by the law describing the
offense” and that this clearly applies to the statutory maximum
in subsection (a) as well. Id.; see also United States v. Alfaro-
Hernandez, 453 F.3d 280, 282 (5th Cir. 2006) (declaring that
“[t]he plain language of the statute indicates that the maximum
term of imprisonment is gleaned from the section defining the
offense, not from the maximum Guidelines sentence as
calculated by the district court and applicable to the defendant
. . . .”); United States v. Acres, 128 Fed. Appx. 538 (7th Cir.
2005) (noting that it would have been frivolous for defense
counsel to argue that the computation of the defendant’s
supervised release should have been computed based on his
guideline range).

       The Cunningham Court also noted that under the
defendant’s interpretation the letter grade for the same offense
would vary from defendant to defendant based on each
individual’s criminal history and the circumstances surrounding

                               8
the offense of conviction. 292 F.3d at 119. We agree with this
observation and note that the resulting disparity in sentences
would have been contrary to the Sentencing Reform Act’s goal
of uniformity in sentencing. See 28 U.S.C. § 991(b) (specifying
that, inter alia, the purpose of the United States Sentencing
Commission is to establish sentencing policies and practices that
“avoid[] unwarranted sentencing disparities among defendants
with similar records who have been found guilty of similar
criminal conduct . . . .”); 18 U.S.C. § 3553(a)(6) (providing that
courts, in the imposition of sentence, should consider “the need
to avoid unwarranted sentence disparities . . . .”).

       Because Lovett’s maximum term of supervised release
was properly computed based on the maximum term of
imprisonment authorized by the statute of conviction as no more
than three years both before and after Booker, there was no ex
post facto increase. In the absence of an increase in his
punishment, we need not address Lovett’s constitutional
arguments. Nonetheless, as Lovett acknowledged in his reply
brief, even if he had been exposed to a greater term of
supervised release post-Booker, that would not constitute an ex
post facto violation of the Due Process Clause under United
States v. Pennavaria, 445 F.3d 720, 723-24 (3d Cir. 2006).

       For the above reasons, we will affirm the judgment of the
District Court.




                                9
