225 F.3d 148 (2nd Cir. 2000), 00-1015, United States v Pacheco

Docket Nº:Docket No. 00-1015
Citation:225 F.3d 148
Party Name:UNITED STATES of AMERICA, Appellee, v. CARLOS PACHECO, Defendant-Appellant.
Case Date:August 19, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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225 F.3d 148 (2nd Cir. 2000)



CARLOS PACHECO, Defendant-Appellant.

Docket No. 00-1015

United States Court of Appeals, Second Circuit

August 19, 2000

Argued: June 22, 2000

Appeal from a judgment entered in the Northern District of New York (Mordue, J.), convicting the defendant, after a guilty plea, of one count of reentry following deportation, in violation of 8 U.S.C. § 1326(a)(1), and sentencing him to a 46-month prison term, three years of supervised release, and ordering him to pay a special assessment of $100, the court having found that misdemeanor crimes for which suspended sentences of one year were imposed constituted aggravated felonies within the definition of 8 U.S.C. § 1101(a)(43)(F)&(G), such that the 16-level enhancement provided for in U.S.S.G. § 2L1.2(b)(1)(A) applied.


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MARTIN J. KEHOE, Albany, NY, for Defendant-Appellant.

TINA SCIOCCHETTI, Assistant United States Attorney, Albany, NY (Daniel J. French, United States Attorney Northern District of New York), for Appellee.

Before: MINER, McLAUGHLIN and STRAUB, Circuit Judges.

Judge STRAUB dissents in a separate opinion.

MINER, Circuit Judge:

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master - that's all."

--Lewis Carroll, Through the Looking Glass (emphasis in original).

In the case before us, we deal with the question of whether Congress can make the word "misdemeanor" mean "felony." As will be seen, we hold that it can, because in this instance, we consider Congress "to be master - that's all."

Defendant-Appellant Carlos Pacheco appeals from his judgment of conviction after a plea of guilty to one count of aggravated reentry following deportation, in violation of 8 U.S.C. § 1326(a)(1), the court having sentenced him to a 46-month prison term, three years of supervised release and having ordered him to pay a $100 special assessment. At issue is whether the district court erred in applying the 16-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), for illegal reentry after commission of an "aggravated felony," when that term is defined by statute as certain enumerated crimes "for which the term of imprisonment [is] at least one year," see e.g., 8 U.S.C. § 1101(a)(43)(F)&(G), and when Pacheco had been convicted, prior to deportation, of three misdemeanors in Rhode Island state court that each resulted in a suspended term of imprisonment of one year. Despite a scrivener's error in the statutory definition of the term "aggravated felony," we find Congress' intent to classify certain misdemeanors as felonies clear. We therefore carry out the intent of Congress and affirm the judgment of the district court.


I. Pacheco's Prior Offenses

Pacheco, a native and citizen of Portugal, was admitted to the United States as a lawful permanent resident at Boston, Massachusetts in 1976, at the age of six. During the years 1990 to 1997, Pacheco was convicted of misdemeanors in the state of Rhode Island as follows: in 1990, for domestic assault and obstructing an officer; in 1992, for transmitting a false fire alarm, simple assault, shoplifting, failure to appear, domestic assault, tampering with an automobile (two counts), larceny under $500, obstruction of justice, and resisting

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arrest; in 1995, for shoplifting and obstruction of a police officer, simple domestic assault, and resisting arrest; in 1997, for eluding police and resisting arrest. Pacheco received suspended sentences or fines for most of these offenses, and on one occasion his sentence included court-ordered family counseling. He also apparently served some jail time over the years: three months for one offense, 45 days for another offense and two 30-day sentences on two other occasions.

On three separate occasions pertinent to this appeal, Pacheco received suspended one-year sentences, together with one year's probation. These sentences were imposed for 1) the 1992 conviction of larceny under $500, which arose out of the theft of a small video game valued at approximately $10; 2) the 1992 shoplifting conviction, which arose out of the theft of four packs of Newport's cigarettes and two packs of Tylenol Cold Medicine, valued at $83.50, from the Almac Store in Cranston, Rhode Island; and 3) the 1995 conviction for simple domestic assault, in which he was charged with assaulting his wife, Maria.

II. Pacheco's Deportation

On November 18, 1997, the INS issued a Notice to Appear in removal proceedings pursuant to Section 240 of the Immigration and Nationality Act ("INA"), see 8 U.S.C. § 1229a, notifying Pacheco that he was deemed deportable based on two of the misdemeanor convictions for which he received suspended one-year sentences: his 1992 conviction for the offense of larceny under $500 and his 1995 conviction for the offense of domestic assault. The Notice then informed Pacheco that he was subject to removal from the United States pursuant to

Section 237(a)(2)(A)(iii) of the [INA] as amended, in that, at any time after admission, you have been convicted of an aggravated felony as defined in Section 101(a)(43)(G) of the [Act], (a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least 1 year [8 U.S.C. § 1101(a)(43)(G)]. . . . [and] an aggravated felony as defined in section 101(a)(43)(F) of the [INA] [8 U.S.C.§ 1101(a)(43)(F)]. [T]o wit; a crime of violence (as defined in section 16 title 18, United States Code, . . . ) for which the term of imprisonment was at least one year.

On January 22, 1998, the INS issued a Warrant of Removal/Deportation in Pacheco's name. On February 17, 1998, an INS agent personally served Pacheco with a Form I-294, entitled "Warning to Alien Ordered Removed or Deported," advising him that he had been found deportable and would be permanently "prohibited from entering, attempting to enter, or being in the United States" because he had "been convicted of a crime designated as an aggravated felony." Form I-294 bears the following warning, prominently displayed at the bottom of the page:

WARNING: Title 8 United States Code, Section 1326 provides that it is a crime for an alien who has been removed from the United States to enter, attempt to enter, or be found in the United States without the Attorney General's express consent. Any alien who violates this section of law is subject to prosecution for a felony. Depending on the circumstances of the removal, conviction could result in a sentence of imprisonment for a period of from 2 to 20 years and/or a fine of up to $250,000.

An INS agent reviewed the Form I-294 with Pacheco, who then signed it. On February 20, 1998, Pacheco was deported from the United States to Portugal. The INS administrative file contains no indication that Pacheco ever filed an appeal of the Immigration Judge's order of removal or further litigated his removal case.

III. Pacheco's Present Offense of Illegal Reentry

On April 4, 1999, immigration inspectors found Pacheco on a bus that was traveling

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from Montreal, Canada to New York City. At the Champlain Port of Entry in Champlain, New York, Pacheco showed his Portuguese passport and told the immigration officer that he planned to visit his mother in New York City. A background check revealed Pacheco's prior deportation and, after subsequent questioning, Pacheco admitted to his prior deportation. Pacheco was arrested and charged with reentry following deportation, in violation of 8 U.S.C. § 1326.

On June 1, 1999, pursuant to a written plea agreement, Pacheco pled guilty to a one-count indictment. In the plea agreement, the parties stipulated that "the Specific Offense Characteristic set forth in Guideline § 2L1.2(b)(1)(A) applies in that Defendant was previously deported after conviction for an aggravated felony. Accordingly, a 16-point increase applies and the total offense level is 24." (Emphasis in original). Prior to sentencing, and apparently after Pacheco saw his presentence report ("PSR"), the parties agreed to remove the stipulation in order to allow Pacheco to preserve for appeal the issue of whether his prior misdemeanor convictions did indeed qualify as aggravated felonies.

In the PSR, the United States Probation Office concluded that the enhancement under Section 2L1.2(b)(1)(A) for prior aggravated felony convictions did not apply in Pacheco's case, stating as follows:

[T]he plea agreement stipulates that the Specific Offense Characteristic set forth in U.S.S.G. § 2L1.2(b)(1)(A) applies in that the defendant was previously deported after a conviction for an "aggravated felony" and that the defendant[']s adjusted offense level should be a 24. However, all of the defendant's past convictions were only for misdemeanors not felonies. Therefore, a 4 level enhancement rather [than] a 16 level enhancement is appropriate pursuant to U.S.S.G. § 2L1.2(b)(1)(B) making the Adjusted Offense Level 12 and the Total Offense Level 10, including a 2 level reduction for Acceptance of Responsibility.

(Emphasis added).

Prior to sentencing, the government filed two memoranda with the district court in aid of sentencing, urging the court to apply the 16-point "aggravated felony" enhancement authorized by U.S.S.G. § 2L1.2(b)(1)(A). The government contended that three of Pacheco's prior convictions triggered the enhancement. These convictions were the two for which Pacheco had been deported -- (1) the October 8, 1992 conviction...

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