U.S. v. Gitten

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-1059
• Citation: 231 F.3d 77
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. MAURICE KARL GITTEN, aka Maurice Gitten, aka Maurice Carl Gittens, aka Maurice Karl Gittens, aka Maurice K. Coittens, aka Robert Theodore Mitchell, aka Maurice K. Gittens, aka Maurice Gitto, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 77

231 F.3d 77 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. MAURICE KARL GITTEN, aka Maurice Gitten, aka Maurice Carl Gittens, aka Maurice Karl Gittens, aka Maurice K. Coittens, aka Robert Theodore Mitchell, aka Maurice K. Gittens, aka Maurice Gitto, Defendant-Appellant.

Docket No. 00-1059

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: October 4, 2000

Decided: November 01, 2000

Appeal from a judgment of the United States District Court for the Southern District of New York, Denise Cote, Judge, convicting defendant of reentering the United States in violation of 8U.S.C. § 1326, and sentencing him as an alien who had previously been deported after conviction of an aggravated felony.

Affirmed.

ANDREW J. CERESNEY, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Evan T. Barr, Assistant United States Attorney, New York, New York, on the brief), for Appellee.

BENJAMIN E. ROSENBERG, New York, New York (Swider Berlin Shereff Friedman, New York, New York, on the brief), for Defendant-Appellant.

Before: KEARSE, CALABRESI, and SOTOMAYOR, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Maurice Karl Gitten appeals from a judgment entered in the United States District Court for the Southern District of New York following his plea of guilty before Denise Cote, Judge, convicting him of reentering the United States without the permission of the United States Attorney General, in violation of 8U.S.C. § 1326 (Supp. III 1997), and principally sentencing him, as an alien who reentered illegally after having previously been deported following his conviction of an aggravated felony, to 77 months' imprisonment. On appeal, Gitten raises an ex post facto argument, contending that the district court committed plain error in sentencing him under the 1998 version of the Sentencing Guidelines ("Guidelines"), rather than the 1995 version. He argues principally that, although some of his prior convictions were aggravated felonies under an expanded definition introduced by the 1998 version of the Guidelines, none of his prior convictions were aggravated felonies under the 1995 version. Finding no merit in his contentions, we affirm.

In general, a defendant is to be sentenced under the version of the Guidelines that is in effect at the time of sentencing unless, in violation of the Ex Post Facto Clause, that version would require a punishment more onerous than would be required by the version in effect at the time the offense was committed. See, e.g., United States v. Adeniyi, 912 F.2d 615, 618 (2d Cir. 1990); see generally Miller v. Florida, 482 U.S. 423, 435 36 (1987). In the present case, Gitten, who did not timely object to the district court's application of the 1998 Guidelines, contends that application of the 1998 version constituted plain error. See, e.g., United States v. Olano, 507 U.S. 725, 732 (1993) (plain error is error that prejudicially affected the defendant's "substantial rights" and "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings"). We conclude that there was no error here, much less plain error, because at least one of Gitten's prior convictions constituted an aggravated felony under the 1995 version of the Guidelines, and thus the 1998 version exposed him to no greater penalty than did the 1995 version.

For a defendant convicted of illegally reentering the United States in violation of 8 U.S.C. §1326, the Guidelines require a 16 step increase in offense level if the reentry followed the defendant's deportation after conviction of an aggravated felony. See Guidelines § 2L1.2. The 1995 Guidelines, which were in effect during Gitten's offense, defined "aggravated felony" to include

any crime of violence (as defined in 18 U.S.C. § 16, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years; or any attempt ... to commit any such act. The term "aggravated felony" applies to offenses described in the previous sentence whether in violation of federal or state law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years. See 8U.S.C. §1101(a)(43).

1995 Guidelines § 2L1.2 Application Note 7 ("Application Note 7"). Section 16 of Title 18, referred to in this Application Note, defines "crime of violence" as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (1994).

Gitten's criminal record prior to his 1992 deportation included New York State convictions for first-degree robbery in April 1977, for which he was sentenced to serve seven years' imprisonment, and second-degree robbery, also in April 1977, for which he was sentenced to a prison term of 10 years. Those prison terms ended when Gitten was released on parole in 1980. Gitten concedes that his 1977 state robbery convictions were for crimes of violence within the meaning of 18 U.S.C. § 16(a), as each offense, by definition, included an element of force. (See Gitten brief on appeal at 10 n.5 ("In 1977, robbery in the first degree and robbery in the second degree were defined in New York Penal Law §§160.15 and 160.10, respectively as 'forcibly steal[ing] property' in conjunction with certain other elements.").) He argues, however, that when he was sentenced in 1999, the robberies were not aggravated felonies within the meaning of §2L1.2 because his imprisonment for those offenses ended upon his parole in 1980 and hence had not been "completed within the previous 15 years," 1995 Guidelines § 2L1.2 Application Note 7. We disagree with Gitten's interpretation of the scope of the 15 year limitation.

The wording of Application Note 7's antiquity limitation on the violent crimes that could be considered aggravated felonies in connection with §2L1.2's 16-step offense-level enhancement indicated that only foreign, not domestic, offenses were subject to the 15 year limitation. As indicated above, the last sentence of Application Note 7 stated that

[t]he term "aggravated felony" applies to offenses described in the previous sentence whether in violation of federal or state law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years.

1995 Guidelines § 2L1.2 Application Note 7. If, as Gitten contends, the Sentencing Commission had meant the 15 year limitation to apply to federal and state offenses as well as to foreign offenses, the Note could have referred simply to a "violation of federal, state, or foreign law, for which the term of imprisonment was completed within the previous 15 years." Instead, the Commission distanced domestic offenses from foreign offenses by inserting the word "also" after "and" and by repeating the phrase "offenses described in the previous sentence." We regard the repetition and the presence of "also" as clear indicia that the 15 year limitation, mentioned only at the very end of the sentence, was meant to modify only the category of offenses that followed the repetition.

This interpretation is reinforced by Application Note 7's relationship to 8 U.S.C. §1101(a)(43), to which the last sentence of the Note cites. Application Note 7 was introduced in 1991, see Guidelines App. C, amend. 375 (Nov. 1, 1991), following Congress's passage of the Immigration Act of 1990 ("Immigration Act" or "Act"), Pub. L. No. 101-649, 104 Stat. 4978 (1990). The Act amended §1101(a)(43) of Title 8 by, inter alia, adding a paragraph that describes what types of offenses constitute aggravated felonies, and whose final sentence states that

[t]he term ["aggravated felony"] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.

8U.S.C. §1101(a)(43) (1994). Thus, this section's final sentence, which the final sentence of Application Note 7 parallels, uses a bifurcating...