                                                                                                                           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Precedential or Non-Precedential: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

                                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 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
