                                                                           [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                            FOR THE ELEVENTH CIRCUIT                 U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                            JAN 22 2001
                                                                        THOMAS K. KAHN
                                                                              CLERK
                                        No. 00-10899

                        D. C. Docket No. 99-00539 CR-JOF-1-1


UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

ALEXANDER ANTOINE CHRISTOPHER,

                                                                       Defendant-Appellant.



                      Appeal from the United States District Court
                         for the Northern District of Georgia


                                     (January 22, 2001)


Before DUBINA and HULL, Circuit Judges, and HODGES*, District Judge.

__________________________
*Honorable William Terrell Hodges, U.S. District Judge for the Middle District of Florida,
sitting by designation.
DUBINA, Circuit Judge:

      Alexander Antoine Christopher (“Christopher”) appeals the district court’s

imposition of his 77-month sentence for illegal re-entry into the United States in

violation of 18 U.S.C. § 1326. The sole issue he raises on appeal is whether the

district court erred in imposing a 16-level enhancement pursuant to United States

Sentencing Guideline (“U.S.S.G.”) § 2L1.2(b)(1)(A), because his prior conviction

for theft qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G). We

hold that the district court properly imposed the 16-level enhancement because

Christopher’s theft conviction qualifies as an “aggravated felony.”

                               I. BACKGROUND

      In 1999, an Immigration and Naturalization Service (“INS”) agent learned

that Christopher, an illegal alien, was in custody at the Clayton County Detention

Center, serving a sentence for probation violation. The INS agent subsequently

determined that Christopher was born in Bermuda, that he entered the United

States at Miami, Florida, on January 3, 1994, and that while in the United States,

he was arrested and convicted in Georgia on five separate occasions for driving

under the influence. In 1994, authorities charged him with the felony offense of

operating a motor vehicle after being declared an habitual violator. Christopher




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was convicted of this felony and voluntarily deported from the United States in

April 1995. Christopher re-entered the United States shortly thereafter.

      In 1997, Christopher was convicted in Fulton County State Court for the

misdemeanor offenses of theft by shoplifting and obstruction of an officer. The

court sentenced him to 12 months incarceration on each count, to run concurrently,

and suspended the sentences. Following this conviction, authorities deported

Christopher for a second time. Later, Christopher re-entered the United States

without receiving permission from the United States Attorney General, a violation

of 8 U.S.C. § 1326. A grand jury indicted Christopher for this violation, and he

pled guilty to the offense. The district court sentenced him to 77 months

imprisonment. When calculating Christopher’s sentence, the district court added

16 levels to his base offense level under U.S.S.G. § 2L1.2(b)(1)(A), because his

prior conviction for theft by shoplifting was an aggravated felony under 8 U.S.C. §

1101(a)(43)(G). Christopher objected to the enhancement and maintains his

objection on appeal.

                                II. DISCUSSION

      Christopher argues that the district court erred in applying to his base

offense level the 16-level enhancement for being deported after committing an

aggravated felony. He posits that theft by shoplifting does not meet the definition


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of “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(G), because theft by

shoplifting is an offense for which the term of imprisonment is at most one year,

and not at least one year. He also contends that the language of the statute applies

only to crimes that are obviously felony crimes by nature. Furthermore,

Christopher argues that, to the extent that the language of 8 U.S.C. § 1326 is

ambiguous, the rule of lenity requires that the ambiguity be resolved in his favor.

      There is no reason to discuss the rule of lenity because we find no ambiguity

in the statute. Christopher argues that an ambiguity arises with the missing verb or

word(s) in 8 U.S.C. § 1101(a)(43). This section provides that a “crime of violence

. . . for which the term of imprisonment [sic] at least one year” is an aggravated

felony. We resolved this arguable ambiguity in United States v. Maldonado-

Ramirez, 216 F.3d 940, 944 (11th Cir. 2000), pet. for cert. filed, September 25,

2000 (No. 00-6264). In Maldonado-Ramirez, we noted that a “more

comprehensive review of § 1101(a) removes any uncertainty caused by the

typographical error in the subsections concerning crimes of violence and burglary.”

216 F.3d at 943. We looked to section 1101(a)(48)(B), which states that “[a]ny

reference to a term of imprisonment . . . is deemed to include the period of the

incarceration or confinement ordered by a court of law regardless of any

suspension of the imposition or execution of that imprisonment . . . in whole or in


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part.” We also noted that Congress could change the import of any statute by

inserting new language, but the definitions of theft offenses and violent offenses as

they appear in the statute “are not ambiguous or devoid of meaning.” Id. at 944.

Thus, we concluded that the length of sentence imposed determines whether a

crime of theft constitutes an “aggravated felony.” Id.; see also United States v.

Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000) (holding that the statute

means the sentence actually imposed).

        We discern a clear intent in the statute to include as an “aggravated felony”

any theft offense for which the term of imprisonment is at least one year.

Accordingly, it does not matter that Christopher’s theft offense is one for which the

term of imprisonment is at most one year. The state court sentenced Christopher to

12 months incarceration on his theft offense. Since the sentence imposed is the

controlling factor, Christopher’s theft offense qualifies as an “aggravated felony.”

The fact that the state court suspended his sentence is irrelevant. Guzman-Bera,

216 F.3d at 1020 (referencing 8 U.S.C. § 1101(a)(48)(B)).

      Alternatively, Christopher argues that his theft conviction cannot be an

“aggravated felony” because it is a misdemeanor under state law. This is an issue

of first impression for our circuit. The other circuits that have addressed this issue

have decided that misdemeanors can qualify as “aggravated felonies” under the


                                          5
statute. See United States v. Pacheco, 225 F.3d 148, 254 (2nd Cir. 2000); Wireko

v. Reno, 211 F.3d 833, 835 (4th Cir. 2000); United States v. Graham, 169 F.3d

787, 792 (3rd Cir.), cert. denied, 528 U.S. 845, 120 S.Ct. 116 (1999). We find the

reasoning of our sister circuits persuasive and adopt it as the law of this circuit.

      In Graham, the defendant pled guilty to illegal re-entry into the United

States following deportation. The district court imposed a 16-level enhancement

based on a prior New York state conviction for petit larceny, which, under state

law, was a misdemeanor carrying a maximum one-year prison term. 169 F.3d at

789. The state court sentenced Graham to a one-year prison term for the petit

larceny conviction. On appeal, Graham argued that his misdemeanor could not be

an “aggravated felony” that subjected him to a 16-level enhancement. The Third

Circuit held that Congress was defining a term of art, “aggravated felony,” which

in this case includes certain misdemeanants who receive a sentence of one year.

Id. The court gave effect to the definition of the underlying offense and ignored

the label. Accordingly, the court upheld the enhancement, finding that Graham’s

state misdemeanor conviction qualified as an aggravated felony because the

sentence imposed was one year. Id. at 793.

      The Second Circuit in Pacheco followed the Graham court and held that a

misdemeanor may, in some cases and consistent with legislative intent, fall within


                                           6
the Immigration and Nationality Act’s definition of “aggravated felony.” In

Pacheco, the defendant pled guilty to illegal re-entry in the United States after

having been deported. Prior to sentencing, the government urged the court to

impose the 16-level enhancement because of Pacheco’s prior convictions – a 1992

shoplifting conviction, a 1995 conviction for simple domestic assault, and a 1992

conviction for larceny under $500. Each conviction earned Pacheco a suspended

one-year sentence, followed by one year of probation. The district court agreed

with the government and imposed the 16-level enhancement.

      On appeal, the Second Circuit upheld the enhancement, noting that the

House Report shows that the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 expanded the definition of “aggravated felony” as it

applies to crimes of violence and theft offenses for the clear purpose of bringing

more convictions within its ambit. 225 F.3d at 154. The court also determined that

nothing in the legislative history indicated that in lowering the term of

imprisonment to one year, “Congress intended to exclude a conviction that

otherwise meets the definition merely because it is labeled under state law as a

misdemeanor, and may, in another case, be punished by a term of less than one

year.” Id. Therefore, the court determined that the defendant’s state misdemeanor




                                          7
convictions should be considered “aggravated felonies” that warranted the 16-level

enhancement.

      We adopt the reasoning of our sister circuits and hold that felony status is

not an absolute requirement for the use of the “aggravated felony” enhancement.

Although Congress apparently did not notice that it might be breaking the time-

honored line between felonies and misdemeanors, Congress had the power to

define the punishment for the crime of re-entering the United States after

deportation. As the Graham court noted, the term “aggravated felony” under the

statute is a term of art which includes any crime, including certain misdemeanors

that Congress determined qualified as an “aggravated felony.” 169 F.3d at 792;

Wireko, 211 F.3d at 835.

                               III. CONCLUSION

      The statute includes as an “aggravated felony” any theft offense for which

the term of imprisonment is at least one year. Christopher’s offense meets this

definition. Although the theft offense is a misdemeanor under state law, it

qualifies as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(A) & (F).

Accordingly, we affirm the district court’s imposition of the 16-level enhancement

to Christopher’s base offense level pursuant to U.S.S.G. § 2L1.2.

      AFFIRMED.


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