                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-22-1999

United States v. McKenzie
Precedential or Non-Precedential:

Docket 98-5490




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Recommended Citation
"United States v. McKenzie" (1999). 1999 Decisions. Paper 260.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/260


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Filed September 22, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5490

UNITED STATES OF AMERICA

v.

DAVID CHRISTOPHER MCKENZIE,

       Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 98-00303)
District Judge: Honorable Jerome B. Simandle

Submitted under Third Circuit LAR 34.1(a)
September 17, 1999

BEFORE: GREENBERG, SCIRICA, and RENDELL,
Circuit Judges

(Filed: September 22, 1999)

       Faith S. Hochberg
       United States Attorney
       George S. Leone
       Maureen A. Ruane
       Office of the United States Attorney
       970 Broad Street
       Room 700
       Newark, NJ 07102

        Attorneys for Appellee
       Lisa C. Evans
       Julie A. McGrain
       Office of Federal Public Defender
       800 Hudson Square
       Suite 350
       Camden, NJ 08102

        Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter is before this court on an appeal from a
judgment of conviction and sentence entered on November
4, 1998, in the district court. The appellant, David
Christopher McKenzie, pleaded guilty to an indictment
charging him with a violation of 8 U.S.C. SS 1326(a) and
(b)(2) by knowingly and willfully re-entering the United
States after being deported subsequent to his conviction for
commission of an aggravated felony. The district court
sentenced McKenzie to a term of 41 months imprisonment
to be followed by a two-year term of supervised release.

The background of the case is as follows. McKenziefirst
entered the United States from Jamaica in 1986. On April
17, 1990, McKenzie was convicted in the Circuit Court of
Prince George's County, Maryland, for felony possession of
crack cocaine with the intent to distribute it. The state
court sentenced McKenzie to a three-year term of
imprisonment to be followed by a three-year term of
probation. The court, however, suspended two years and
three months of the prison term. On October 26, 1996,
McKenzie was arrested in the District of Columbia and
charged with possession of an unlicensed and unregistered
pistol and possession of ammunition. McKenzie, however,
was not prosecuted for these alleged offenses as the
government instead instituted proceedings against him
leading to his deportation to Jamaica on June 3, 1997.

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The events leading directly to this prosecution may be
traced to May 8, 1998, when McKenzie arrived at Newark
International Airport on a flight from Jamaica with an
altered passport in someone else's name. McKenzie
admitted to the immigration officers that he was not the
owner of the passport, and that he had been deported for
drug and weapons offenses. The prosecution culminating in
this appeal followed.

Pursuant to U.S.S.G. S 2L1.2 the district court calculated
McKenzie's total offense level as 21, which, with a criminal
history category of II, yielded a sentencing range of 41 to 51
months. The computations were as follows. First, U.S.S.G.
S 2L1.2(a) established a base offense level of 8. Then there
was a 16-level increase pursuant to U.S.S.G.
S 2L1.2(b)(1)(A) because of McKenzie's conviction for an
aggravated felony. Thus, McKenzie's adjusted offense level
was 24. The court, however, made a 3-level reduction in
calculating the total offense level for acceptance of
responsibility pursuant to U.S.S.G. SS 3E1.1(a) and (b).
McKenzie does not object to any of these calculations.

McKenzie, however, requested a 2-level downward
departure pursuant to Application Note 5 to U.S.S.G.
S 2L1.2, which provides that:

       Aggravated felonies that trigger the adjustment from
       subsection (b)(1)(A) vary widely. If subsection (b)(1)(A)
       applies, and (A) the defendant has previously been
       convicted of only one felony offense; (B) such offense
       was not a crime of violence or firearms offense; and (C)
       the term of imprisonment imposed for such offense did
       not exceed one year, a downward departure may be
       warranted on the seriousness of the aggravated felony.

It is that request that brings us to the crux of this appeal
as the district court held that the application note was
inapplicable because, notwithstanding the partial
suspension of sentence, the circuit court imposed a term of
imprisonment exceeding one year for the crack cocaine
offense. We exercise plenary review on this appeal involving
the interpretation of the sentencing guidelines. See, e.g.,
United States v. Huff, 873 F.2d 709, 713 (3d Cir. 1989).

                               3
II. DISCUSSION

McKenzie's argument is not complicated. He points to
U.S.S.G. SS 4A1.2(b)(1) and (2) which provide that "[t]he
term `sentence of imprisonment' means a sentence of
incarceration and refers to the maximum sentence
imposed" but that "[i]f part of a sentence of imprisonment
was suspended, `sentence of imprisonment' refers only to
the portion that was not suspended." The difficulty with
McKenzie's position is, however, obvious as U.S.S.G
S 4A1.2(b) defines "sentence of imprisonment" for purposes
of computing a defendant's criminal history category, a
subject not at issue in this case. Thus, U.S.S.G. S 4A1.2(b),
which we emphasize refers to "sentence of imprisonment"
rather than "term of imprisonment" as used in Application
note 5, is not implicated here.

What is implicated here is 8 U.S.C. S 1101(a)(48)(B) which
provides that "[a]ny reference to 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 or execution
of that imprisonment or sentence in whole or in part."
Application Note 1 to U.S.S.G. S 2L1.2, which defines terms
for "purposes of [that] guideline," incorporates the definition
of aggravated felony in the last paragraph of 8 U.S.C.
S 1101(a)(43) which uses the phrase "term of imprisonment"
as defined in 8 U.S.C. S 1101(a)(48)(B).

As we have indicated, McKenzie pleaded guilty to a
violation of 8 U.S.C. S 1326 because he re-entered the
United States after his conviction for an aggravated felony.
Inasmuch as U.S.S.G. S 2L1.2 implements 8 U.S.C. S 1326,
it follows inexorably that within the meaning of Application
Note 5 McKenzie was convicted of an aggravated felony in
which the term of imprisonment did exceed one year.
Consequently, the district court interpreted the guidelines
correctly. Finally, we point out that our result is in accord
with United States v. Chavez-Valenzuela, 170 F.3d 1038,
1039-40 (10th Cir. 1999), which the parties indicate is the
only published opinion directly on point.

                               4
III. CONCLUSION

For the foregoing reasons the judgment of conviction and
sentence entered November 4, 1998, will be affirmed.

A True Copy:
Teste:

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

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