U.S. v. Graham, 98-1556

• Decision Date: 05 March 1999
• Docket Number: No. 98-1556,98-1556
• Parties: 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
• Court: U.S. Court of Appeals — Third Circuit

Page 787

169 F.3d 787

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

No. 98-1556.

United States Court of Appeals Third Circuit.

Argued Jan. 27, 1999.

Decided March 5, 1999.

Maureen Kearney Rowley, Chief Federal Defender, David L. McColgin, Assistant Federal Defender, Supervising Appellate Attorney, Sylvia A. Russianoff (Argued), Assistant Federal Defender, Defender Association of Philadelphia, Philadelphia, PA, for Appellant.

Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney, Chief of Appeals, Judy Goldstein Smith, Robert A. Zauzmer (Argued), Assistant United States Attorneys, Philadelphia, PA, for Appellee.

Before: BECKER, Chief Judge, SCIRICA and ROSENN Circuit Judges.

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 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 U.S. following deportation, a violation of 8 U.S.C. § 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 § 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 8 U.S.C. § 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. § 2L1.2(b)(1)(B) (incorporating the aggravated felony definitions of 8 U.S.C. § 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. § 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 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, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). However, the rule of lenity does not apply simply because a statute requires interpretation. See Caron v. United States, 524 U.S. 308, 118 S.Ct. 2007, 2012, 141 L.Ed.2d 303 (1998) (the rule is "not invoked by a grammatical possibility"); Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 1919, 141 L.Ed.2d 111 (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(a)(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 least five 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 § 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 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 § 1101(a)(43)(J) (covering racketeering and gambling crimes "for which a sentence of one year imprisonment or more may be imposed"); § 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 ...