United States v. Carlos Pacheco

STRAUB, Circuit Judges. carry out the of Congress intent and af-

firm judgment of the district court.

BACKGROUND I. Pacheco’s Prior Offenses MINER, Circuit Judge: Pacheco, a native and citizen Portu- word,” I “When use a Humpty Dump- gal, was admitted to the United States as ty said, in rather a tone, scornful “it permanent lawful Boston, resident at Mas- just means what I choose it to mean— in sachusetts age at the Dur- six. neither more nor less.” ing 1990 to Pacheco was is,” “The question Alice, said “whether convicted in misdemeanors the state of you make can mean many words so Rhode Island as in 1990, follows: for do- things.” different mestic assault and officer; obstructing an “The question is,” said Humpty transmitting alarm, false fire Dumpty, “which is to be master —that’s assault, simple shoplifting, ap- failure to all.” pear, assault, domestic tampering with an Carroll, —Lewis Through (two counts), Look- automobile larceny under Glass original). $500, justice, obstruction of and resisting the term for which burglary and ob- shoplifting arrest; year [8 least [is] officer, domes- simple police of a struction 1101(a)(43)(G) .... ] [and] arrest; U.S.C. assault, resisting tic in section felony as defined resisting arrest. police eluding [8 [INA] sentences suspended received Pacheco wit; crime of a ]. [T]o offenses, one and on of these most fines for 18, (as 16 title in section defined violence court-or- included his sentence occasion ...) the Code, which for States appar- United He also counseling. family dered at least was of years: the over jail time some ently served offense, for days year. for months three 30-day sentences two and offense

another a 1998, the INS issued January On occasions. other on two in Pache- Removal/Deportation of Warrant an INS February to pertinent co’s name. On occasions separate three On with a Pacheco served suspended personally agent Pacheco received appeal, “Warning to Alien 1-294, entitled sentences, with together Form one-year advising Deported,” or were Removed These sentences Ordered probation. year’s and deportable lar- found (1) of had been him that he the 1992 conviction for imposed from “prohibited permanently out of $500, be which arose would ceny under enter, being in or ap- attempting to entering, valued at game video of a small theft he had “been (2) shoplifting $10; because the United States” proximately ag- an designated as of a crime conviction, out of theft convicted arose which bears the felony.” two Form 1-294 Newport’s cigarettes gravated packs four displayed Medicine, warning, prominently following valued Tylenol Cold packs of Cranston, page: Almac Store at the bottom $83.50, from the conviction Island; the 1995 Rhode United States Title 8 WARNING: assault, he in which domestic simple for a that it is Code, provides Section wife, Ma- assaulting his with charged re- was has been alien for an who crime enter, ria. to States from United moved in the enter, found or to attempt Deportation Pacheco’s II. Attorney Gen- without the States alien who Any a consent. express INS issued eral’s November On subject to proceedings law this section Appear removal violates Notice on Depending felony. a Immigration 240 of the for prosecution to Section pursuant removal, con- (“INA”), of the see 8 U.S.C. circumstances Act Nationality im- in a sentence that he was result could 1229a, Pacheco viction notifying of from to period two of prisonment on deportable based deemed $250,000. up to re- fine of which he convictions and/or his sentences: one-year suspended ceived 1-294 Form reviewed the agent An INS larceny for the offense conviction it. On Pacheco, signed then who with his conviction under $500 deported 20, 1998, was Pacheco February Notice The assault. of domestic Portugal. The United States from the subject he was informed Pacheco then no indica- file contains administrative INS pursu- the United from to removal appeal an ever filed tion Pacheco ant of removal Judge’s order Immigration 237(a)(2)(A)(iii) [INA] of the case. Section his removal litigated or further time after ad- amended, that, Illegal Present Pacheco’s III. Offense mission, convicted of you have been Reentry in Section felony as defined inspectors 4, 1999, immigration April [Act], On 101(a)(43)(G) a theft traveling was bus Pacheco on found property) stolen receipt of (including Montreal, from Canada New City. York reduction for Acceptance of Responsibil- At Champlain Port Entry ity. in Cham- York,

plain, New Pacheco showed his Por- added). (Emphasis tuguese passport and told the immigration Prior to sentencing, government officer that planned he to visit mother his filed two memoranda with the district in New York City. A background check court in aid of sentencing, urging the court revealed prior Pacheco’s deportation and, to apply 16-point “aggravated felony” subsequent after questioning, Pacheco ad- enhancement authorized by U.S.S.G. mitted to his prior deportation. Pacheco § 2L1.2(b)(l)(A). government con- was arrested and charged reentry tended that three of Pacheco’s con- following deportation, in violation of 8 victions triggered enhancement. 1326. These convictions were the for two which Pacheco had deported (1) been the Octo- — 1, 1999, On June pursuant to a written ber 1992 conviction for shoplifting and plea agreement, pled Pacheco guilty to a (2) August 16, 1995 conviction for sim- one-count indictment. plea In the agree- ple plus domestic his April assault — ment, parties stipulated that Spe- “the 1992 conviction larceny for $500, under see cific Offense Characteristic set forth in supra at 149. above, As noted each of 2L1.2(b)(l)(A) Guideline applies in that these convictions earned Pacheco a sus- Defendant previously was deported after pended one-year sentence at Rhode Is- conviction for an aggravated felony. Ac- land’s Adult Institute, Correctional fol- cordingly, a 16-point applies increase lowed year probation. the total level is (Emphasisin M” In support of position, its govern original). Prior to sentencing, appar- ment argued that the term “aggravated ently after Pacheco presentence saw his felony” must be understood purposes for report (“PSR”), parties agreed to re- of the Guideline as it is understood for move stipulation in order to allow Pa- purposes INA, of the pointing out that the checo to preserve for appeal the issue of Guideline incorporates the statutory defini prior whether his misdemeanor convictions tion reference. The government also did qualify indeed aggravated felonies. cited our decision in United States v. PSR, In the the United States Probation Pornes-Garcia, (2d Cir. Office concluded that the enhancement un- 1999) (holding that state drug trafficking 2L1.2(b)(l)(A) der Section for aggra- felony conviction that would have been a felony vated convictions did not apply in misdemeanor under federal law was an case, Pacheco’s stating as follows: felony” under 1101(a)(43)(B) purposes for plea [T]he agreement stipulates that the 2L1.2(b)(l)(A) enhancement). U.S.S.G. Specific Offense Characteristic set forth 2L1.2(b)(l)(A) U.S.S.G. applies in government The argued that “for fed- the defendant was previously de- eral sentencing purposes under ported after a conviction for an “aggra- Guidelines, is irrelevant whether a felony” vated and that the defendant[’]s state categorizes a particular offense as a adjusted offense level should be a 24. ‘misdemeanor’; the federal definition of However, all past con- the term of ‘aggravated art felony’ ap- defendant’s victions only were plies,” misdemeanors adding that “such for definition in- Therefore, a 4 level en- cludes those felonies. enumerated offenses for hancement rather [than] a 16 level en- which a term of imprisonment of at least hancement is appropriate pursuant year was imposed.” government The § 2L1.2(b)(l)(B) U.S.S.G. making the provided also the district court with a Adjusted Offense Level copy the Total United States v. Offense Level including level Cir.1999), F.3d 787 in which the court - DISCUSSION impression first issue of “an addressed held, 791, and courts,” id. the federal Law Applicable 1. defini- Congress’ reluctantly, albeit Sentencing Guide- 2L1.2 of Section tion of for violations level the offense lines defines a “term INA was purposes § 2L1.2. U.S.S.G. § 1326. See of 8 U.S.C. misdemeanants certain “includes art” (a) level a base specifies Subsection Id. year.” a sentence who receive (b)(1) for a provides subsection of while 792. if the sentencing enhancement mandatory hearing on December sentencing At the after deported was previously defendant on Gra- court relied 21, 1999, the district conviction, follows: stating as criminal enhancement. applied ham and ag- (A) was If the conviction court reasoned: levels. by felony, increase gravated (i) (B) Although was If the conviction Section (ii) in 8 U.S.C. more misde- felony found felony, or three other awkwardly misde- of violence or meanor offenses, that for worded, concludes this court substance meanor controlled intended sentencing purposes, by 4 levels. increase “ the in which to include misdemeanors ‘[ag- Commentary explains Id. The year. In reach- imposed is one sentence at 8 U.S.C. is defined felony,’ gravated the conclusion, adopts the Court ing this comment., 1101(a)(43).” Id., n. 1. The § “ in [Gra- Third Circuit the reasoning of ‘[f]elony offense’ explains that note same ].... ham state, federal, local means a term for imprisonment by punishable sentence, the Pacheco’s determining add- (Emphasis Id. year.” exceeding one the 16-level enhancement added court ed.) 8, yielding a total of level the base INA, a 3-level down- 24, as which—after of the level of Section respon- acceptance Re- adjustment Illegal Immigration by ward amended range of 46- sentencing Act of sibility Immigrant Responsibility form —carried C, Pacheco 104-208, sentenced The court Div. Stat. 57 months. Pub.L. No. as “the lowest at U.S.C. imprisonment, (“IIRIRA”), to 46 months’ codified to,” followed you part 1101(a)(43), I in relevant explains can sentence end that release, and [Immigra- supervised Chapter years’ in this three used “[a]s special ‘ag- assess- pay term Nationality], Pacheco to ... [t]he ordered tion and as court concluded felony’ The means- —-...” ment gravated $100. follows: (F) ... for which violence a crime of one at2 least imprisonment the term reflect Now, just the record I want year; sentence, incredibly harsh

I it’s think burglary (G) ... or a theft offense crime a misdemeanor and it seems imprison- term read, which the offense for statutes way the that —the year[.] least one mis- ment at2 person more means year or to a up can they get where demeanors (G) 1101(a)(43)(F) Ill (Supp. & U.S.C. sentence. for this they qualify year, added). two 1997) Footnote imagine that can’t I don’t—I And Probably should be reads, original. “So ” this really meant sentencing reformers Id.; also 8 see U.S.C.A. by ‘is.’ preceded according exists, that’s not but situation (same). (West 1999) (G) 1101(a)(43)(F) & Third Circuit. from resulted error This scrivener’s Prior to INA. to the amendments accordingly, and was sentenced Pacheco catego- IIRIRA, enactment this followed. appeal application offenses of aggravated felony rized as felonies all en- “for which the term of theft or violence hancement in this case. We note that the imposed ... is at imprisonment least 5 two principal arguments advanced Pa- 1101(a)(48)(F) (G) years.” 8 & U.S.C.A. checo precise before us follow the contours (West 1995). IIRIRA mini- lowered the of appellant Graham’s before Third qualifying Circuit, mum term from sentences and we findings endorse the year. Pub.L. No. five See that court. reasoning of C, 321(a)(3), 104-208, Div. 110 Stat. Pacheco’s first argument—that we must (amending “by the provisions construe phrase “for which the term of striking years’ place least 5 each ‘is at year,” [is] least one ”). year’ appears inserting ‘at least 1101(a)(43)(F) (G), referring question whether before us is this to the authorized minimum of im faulty obscures in- language prisonment, rather than to the sentence degree tent to cannot right- such a we actually First, imposed—is unconvincing. ly larceny say petit that Pacheco’s we note that all courts of appeals have simple punishable assault offenses are argument considered the that the missing upon illegal reentry his conviction for verb meanings renders Section Although aggravated felonies. there is 1101(a)(43)(F) & indiscernible have re persuasive authority in other circuits on jected that contention. See issue, answer question as one Maldonado-Ramirez, 216 F.3d impression of first our Court. (11th Cir.2000); 943-44 United States v. Banda-Zamora, 2. Standard Review Cir.1999) (“This drafting snafu does not appeal Because issue on is the make unconstitutionally [§ ] interpretation aggravated felony of the vague.”); 169 at F.3d 789-91.1 statute, our is de novo. review See Pornes-Garcia, (“Where, 171 F.3d at 144. Next, regard with to whether Con here, application as a sentencing court’s of gress statutory was concerned with mini ‘approaches purely legal Guidelines a mums imposed or actual sentences when it question,’ application we review that de IIRIRA, enacted we note the INA that novo.”) Medina, v. (quoting United States instructs as follows: (2d Cir.1996)). 74 F.3d 417 1101(a) Any to [in ] reference a term imprisonment of or a with sentence re- Qualify 3. Does a Misdemeanor as an spect to an is deemed include “Aggravated Felony” under Section period or of incarceration confine- 2L1.2? regard- ment ordered a court of law carefully considering After the par any suspension imposition less of of the arguments, ties’ and own despite our “mis or imprisonment execution of that or givings” Congress, that zeal to deter its sentence in or in part. whole deportable re-entering non-citizens from 1101(a)(48)(B). country, “improvidently, has if this not in This subsection advertently, was IIRIRA broken the historic line of di added amendments and replaced vision between felonies misdemean of phrase “(regardless and ors,” at suspension imprisonment)” F.3d we find that that oc- intent of curred in individual defini- Sections is previously clear to affirm tions of enough aggravated the district court’s felonies verb, understood,” mentioning missing finding petition- ventionally 1. Without a recently Fourth the has that Circuit held deportable "[u]nder er for a 1101(a)(43)(F)], plain language [§ Virginia battery under Wirekov. sexual law. requirement there is no that offense actu- Reno, (4th Cir.2000). 211 F.3d ally felony, have is been that term con- section section amends 1101(a)(43). This id. See at 8 U.S.C. found 440(e) (as by section amended Third 1995). agree with the (West We (Public 104-132)), Law AEDPA of the indicates language Circuit by: felony,” ordinarily the imposed actual term “the sexual abuse rape and 790; crimes of adding at 169 F.3d touchstone.” definitional threshold minor; lowering the fine Guzmam-Bera, of a v. States accord laundering money (find- relating to Cir.2000) (11th for crimes 1019, 1020 transactions monetary illegal and certain felony enhance- aggravated $10,000; lowering the $100,000 to from apply reentry did illegal ment threshold imprisonment initially sentenced who was defendant violence, racketeering, and docu- theft, theft, third grand probation for years’ five year; and ment revocation subsequent since degree, from fraud for crimes threshold lowering the loss pris- of 18-month imposition probation deceit from fraud tax evasion reentry illegal his occurred on term after $10,000. $200,000to States); Alberto-Gonzalez the United into Cir.2000) (9th 906, 908 INS, 215 F.3d v. Cong., 2d 828, 104th Rep. No. H.R. Conf. “for which phrase that the (concluding 1996) Sess., (Sept. year [is] imprisonment history added). legislative Nothing in 1101(a)(43)(G) refers to in section more” however, lowering indicates, imposed). actual sentence year, Con- to one term of a conviction that to exclude gress intended makes Furthermore, the statute merely be- definition meets this otherwise sen that Pacheco’s clear, it is immaterial law as under state it is labeled cause See United suspended. was tence case, be misdemeanor, may, in another Tejeda-Perez, year. than one by a term less punished Cir.1999) defendant’s (finding that Maldonado-Ramirez, F.3d at 944. See re conviction felony degree theft second Pacheco’s second regard to With felony aggravated application quired us, charac before principal contention reen sentencing enhancement as an terizing a misdemeanor year though the one-to-fifteen try, even “felo other uses of at odds felony is suspended); imposed was sentence cf. of other uses law and with in ny” federal Maldonado-Ramirez, 942- F.3d itself, we multi-year (finding that defendant’s argu of any these unpersuaded are attempted burglary sentence of his disposition change the can ments required assault convictions aggravated statutory rule of “whole act” case. felony en aggravated of the imposition of a section us to read exhorts construction although reentry illegal upon hancement from the context “in isolation not a statute only months seven had served defendant to the to “look Act” but whole sentence). law, and to its whole of the v. United policy,” Richards object nothing in the note that Finally, we 585, 7 States, 1, 11, 82 S.Ct. our us to doubt history leads legislative (internal quotation in L.Ed.2d may, that a conclusion it, omitted). we put As we have marks legislative with consistent cases and some in a provision specific “interpret [a] must INA’s definition intent, fall within with it consistent renders way Report The House felony.” act or whole structure tenor and defini expanded the that IIRIRA shows part.” ais of which statutory scheme applies as it felony aggravated tion of Organized v. Bonanno for United theft offenses of violence crimes Nostra, 879 La Cosa Family convic Crime more bringing purpose clear Cir.1989) (citing 2A Suther- F.2d its ambit: tions within Statutory Construction, land 2) § 46.05 hand and aggravated felons on the 1984)). ed. However, other. where U.S.S.G. § 2Ll.l(b)(l)(A) incorporates by refer- Despite Pacheco’s contention to the con ence 1101(a)(43) as the defini- trary, find a we act” “whole reading to tion of aggravated felony, and where favor government’s view. Pacheco definition explicit on its would have us read certain provisions of face that certain punished offenses by a Sentencing Guidelines and of the INA one-year sentence included, it is nei- isolation, such as the statement ther our task to rewrite the definition of 2L1.2(b)(l)(A) U.S.S.G. Application Note “ the underlying offense eliminate the 1 that ‘[fjelony offense’ means feder incongruity ignore nor to the clear dic- al, state, or local punishable tates of the amended Graham, INA. See for a term exceeding one (“[Rjather 169 F.3d at 792-93 than mak- year.” We do not see how that definition ing the underlying offense conform “felony,” alone, standing inoper renders the label Congress erroneously used to ative the IIRIRA amendments to the describe section amended, as INA’s definition of “aggravated felony.” give effect to the definition of the un- points Pacheco also tous other subsections derlying offense ignore label.”). statute, felony such as As the Third noted, Circuit 1101(a)(43)(T), speak in terms of a would have done better at the time that “may sentence be imposed,” bely the 1996 amendments to dispense with clarity Congress’ intent char the term “aggravated felony” and to re- acterize an aggravated felony fer to this wide class of convictions as based on the actual imposed. sentence “aggravated offenses.” See id. at 792. sections, however, These merely show that Congress’ so, failure to however, do does “Congress knows how to distinguish be give us an ignore excuse to the clear tween penalty authorized for a crime meaning of the amendments to and the penalty actually imposed par in a and remand for a less severe sentence. ticular case.” 791. In accordance the foregoing, the Finally, argument best Pacheco’s lies judgment of the district court is hereby arguable inconsistency contained affirmed. within itself, the statute defining the underlying offense of Straub, Judge, Circuit dissenting:

reentry after deportation. The statute provides separate penalties for aliens I respectfully my view, dissent. Car who have committed “three or more mis- los Pacheco’s three suspended sentences of demeanors involving drugs, one-year’s imprisonment for misdemeanor against person, both, the or a felony or convictions cannot constitute “aggravated (other than aggravated an felony),” felonies” the meaning within of Section 1326(b)(1) (providing maximum (a)(43)(F) sen- 101 & of the Immigration and years), tence of 10 and for aliens who (“INA”), Naturalization Act have been removed “subsequent to a (G),& adopt unless we an conviction commission of an aggravat- “Alice-in-Wonderland-like definition 1326(b)(2) (maximum ed felony,” sen- the ‘aggravated felony’” does that tence 20 years). agree We that it violence plain to the and settled meanings seems incongruous for a misdemeanor of- of both “aggravated” “felony.” and Nancy fense to be a predicate to an “aggravat- Morawetz, Understanding the Impact of ed felony,” where the defining statute the 1996 Deportation Laws and the Limit the offense attempts to differentiate be- ed Scope Proposed the Reforms, 113 1) tween misdemeanants and felons who (2000). Harv. L. 1939 ma The Rev.1936, not felons on the jority apparently agrees, but this finds

156 Dauray, 215 States v. ute. See United “consid- it because acceptable conclusion ” Cir.2000). so, (2d doing In F.3d all.’ master —that’s ‘to be Congress er[s] plain to the give to effect attempt CaRROLL, must we Lewis (quoting Ante at See in the statute. word Looking meaning of each Through reaching Glass). In the (when plain interpreting statute’s id. however, majority asks conclusion, the ordinary, com the “consider meaning, we the wrong question, the and answers words”); Har the meaning of mon-sense is not this case by presented issue critical (2d Sullivan, Cir. 968 F.2d ris v. word can make the Congress “whether ” 1992) (“A canon fundamental ante ‘felony,’ mean ‘misdemeanor’ that, de otherwise unless is construction added), rather whether but taking interpreted fined, will be words meaning plain the Because actually did. common ordinary, contemporary, their with the felony” conflicts “aggravated (internal marks omit quotation meaning.” apparently term is in which that manner Hoffman, v. Market Co. ted)); see also is statute, there and because in the defined (“[A] 112, 115-16, 25 L.Ed. to intended no indication whole, so to be upon ought, statute I meaning, plain term’s from the depart no that, prevented, if it can be construed the definition believe superflu sentence, shall be clause, or word ambiguous felony” (internal quota void, ous, insignificant.” re- Thus, lenity rule of its on face. omitted)). tion marks to interpret quires that offenses. meanings exclude of the ordinary and plain clearly “felony” “aggravated” words Meaning I. Plain of the term interpretation conflict with misde- felony” includes determining whether In First, be little there can meanor offenses. convic- 101(a)(43) includes misdemeanor “felony” is com- the word argument violence” within the “crime of tions statutorily de- monly understood —and “aggra- of the subsections “theft offense” by punishable include crimes fined —to definition, by we must start felony” vated greater than year.1 prison terms stat- meaning of the plain examining longstanding, "real” application of the acknowledged the sistent the Third Circuit 1. While case, a crimi- "felony”; each definition one-year line between felonies "solidified” "felony” Graham, a misdemeanors, crime nal mislabeled statute ignoring historical Cir.1999), by the court or "misdemeanor” 169 F.3d line between one-year/more-than-one-year to majority here —decided there —and Hardwick, See, F.2d underlying e.g., Loos v. two. "give to the definition effect Cir.1955) (criminal providing at 154 ignore label.” Ante 793). Graham, sup- was la- years’ imprisonment up five (quoting to "misdemeanor,” decision, defen- which led the cases Graham cites port beled of this permissibly argue crime is question of whether a that he could dant to resolve the year). With with reference than "felony” imprisoned for more or "misdemeanor” imposed, "aggravated definition respect term of actual however, (and given INA, major- to the label Graham with reference in the rather than Congress. principle See question advance ity) the same invoke offenses ("When long- ... namely, & n. 4 at 793 undermine opposite end: par- the term consistency use standing manifest in how [became inconsistencies labeled], generally courts is reinforced "felony.” were conclusion This ticular felony/misdemeanor setting in overarching which significantly different held that controlled, statutory particular provisions stat- so that a unlike the case arises: definition Graham, by was in- it discussed be overridden if in the cases would discussed ute's label felony actually of a forth definition set' substantive with the 'real' all of which consistent offenses, felony” omitted)). (citation "aggravated criminal or misdemeanor.” 101(a)(43) itself § not does provision in INA However, princi- application of this correct Rather, I01(a)(43) § INA any crime. define opposite result. actually yields ple preexisting set of Graham, merely a certain the court by cases cited each of the identifies Congress has decided which felonies to con- to ensure in order "ignore[d] the label” 8559(a); § See 18 U.S.C. United States v. sense unless the compels context to the 787, Cir.1999); contrary.”). Sentencing U.S. Guidelines Manual Second, it is quite clear that 1; § 2L1.2 cmt. n. see also BlacK’s Law felony” defines a subset of the broader Dictionary 1999); ed. WebsteR’s category “felony.” Common sense and Dictionary (1993). Third New Int’l standard English grammar dictate that And it is a well-settled maxim of statutory adjective when an “aggravat- —such construction that Congress “[w]here uses ed”—modifies a noun—such “felony”— terms that have accumulated settled mean- the combination of the terms delineates a law, under ... the common a court subset of the noun. infer, One never sug- must would unless the statute otherwise gest, for dictates, example, that Congress by adding means to the ad- incorpo- jective “car,” rate the meaning established “blue” to the noun of these one could Co., terms.” NLRB v. attempting Amax be Coal to define not, items that are 322, 329, 2789, U.S. 101 S.Ct. 69 L.Ed.2d instance, the first words, cars. In other (1981); see also Perrin v. United based on the plain meaning terms States, 37, 42-43, 311, 100 S.Ct. “aggravated” and “felony,” we should pre- (1979) 62 L.Ed.2d 199 (interpreting statu- sume that the specifics that follow the tory use of common law “bribery” in definition of “aggravated felony” under light of term’s “ordinary, contemporary, 101(a)(43) serve to elucidate what meaning” common at time of statute’s en- particular makes these “aggravat- felonies actment); United States v. United States ed”; certainly should presume not Co., Gypsum 422, 437, 438 U.S. 98 S.Ct. specifies those would include offenses that 57 L.Ed.2d 854 (“Congress Thus, are not felonies at all.2 under the presumed will be to have legislated against majority’s view, Congress has defined a the background of our legal traditional subset of a category to include items that ”); concepts.... Standard Co. Oil Newof are not in the broader category itself. Jersey States, 1, 59, v. United 221 U.S. (1911) (“[WJhere illogic S.Ct. of this L.Ed. 619 is all conclusion apparent words are more employed in a when one statute which had considers the at the time a meaning well-known meaning at com- the word “aggravated.” “Ag- mon law or in the country they gravated” law this denotes a state of affairs that is are presumed to worse, have been enhanced, used or more severe some immigration consequences. attach Simply ony” category is usage reinforced label,” "ignoring therefore, does 274(b)(1), not make both terms in INA 8 sense 1326(b)(1), in this context—for label which authorizes helps which category to delimit the up illegal to 10 reentry by an alien that are to be included. deported being who was after convicted for application Consistent underlying (other "felony aggra- commission of than an principle Graham, therefore, invoked felony)” added). re- vated For those quires particular that whether a criminal of- deported reentrants who were after fense constitutes an felony” being un- convicted for aggra- of an commission determined, der INA felony, punishment in the vated years' (up to 20 instance, first with imprisonment) reference to whether it following is set forth in the properly subsection, may be "felony.” 274(b)(2), characterized as 1326(b)(2). Indeed, And in principle, accordance with that wheth- majority itself ac- er such an actually “felony” knowledges ais un- that these are "incon- der criminal gruous” law should be reading determined with of the statute under reference to one-year/more- "aggravated traditional which felony” misde- includes than-one-year given line—not the label to a meanors. Especially given Ante at 154. particular text, criminal offense already ambiguous federal im- under we should migration law. presume lightly intended such an absurd result. See United States v. 2. "aggravated Wilson, The notion that cat- 503 U.S. 112 S.Ct. egory a (1992). constitutes subset of the broader "fel- 117 L.Ed.2d 593 158 J., banc) (Calabresi, Cir.) (en Dictionary See, e.g.,

manner. Law Black’s — -, denied, U.S. concurring), a cert. 1999) (when to describe (7th used ed. 65 (1999), the 72, 61 L.Ed.2d “made worse 120 S.Ct. crime, means “aggravated” in INA language as such use of circumstances counter-intuitive or more serious raise red deadly weapon, a should violence, presence the crime”); scrutiny. another for closer to commit the need flags signaling the intent or Dictionary that text at all self-evident It is not Int’l Third New Webster’s “to make (1993) (to means 101(a)(43) “aggravate” includes misdemeanor INA severe”); serious, more worse, felony or aggravated more within cf. convictions States, 523 v. United Almendarez-Torres a clearer definition, not without least 1219, L.Ed.2d 235, 118 S.Ct. re U.S. that intended Congress that indication (1998) if 8 (noting that n. 5 at 173 172 F.3d Benjamin, sult. Cf. rath 1326(b)(2) separate awere (“[Wjhen Con (Calabresi, J., concurring) section, sentencing enhancement a er than section, seems definitional in a gress, a proof that require it would ask we apples, should bananas say that ” “ serious ‘aggravated’ was Congress really what that is whether added)). punishable crime felony is If meant....”). such Definitional then, how, year, can by more than 101(a)(43), any other statu like as INA punish felony include “aggravated” ordi given their “must tory provisions, misde To include just year? able make meanings such meanings, when nary “aggravat the definition within meanors in their context sense, read must be but meaning of the plain felony” turns ed mean ordinary seemingly ... when head, entirely on its “aggravated” word it put are—to to statements ings lead being felonies to not since addition Benja unnatural.” mildly linguistically — are conven misdemeanors place, first (Calabresi, J., concur min, F.3d at 192 less severe being tionally understood States, 516 Bailey v. United ring). Cf. felonies, well. See than Alexander Thomas L.Ed.2d 116 S.Ct. al., d Immigrationan Aleinikoffet (“The statutory lan meaning of Policy Citizenship Process not, context.” depends on plain or guage, 101(a)(43) ed.1998) (suggesting citation (internal marks and quotation it in which the manner given ambiguous is omitted)). “felony”). “aggravated” uses terms un- view, “linguistically Thus, my difficulties, the significant these Despite felo- statement natural” adhere to must that we majority asserts renders misdemeanors ny” includes of the statute “clear dictates” further necessitates ambiguous and term aggravat- meaning” of “clear “explicit,” inquiry. It at 154. is Ante felony definition. ed meaning of the clear

only by ignoring statutory provi- within that certain terms Statutory History Legislative II. however, possible sion, that it becomes Structure face,” on its “explicit render seriously be contended it cannot Since 154. it. Ante at majority describes as the “ag- meaning of textual plain, that the (and, by endorsing Third Circuit unambigu- felony” definition gravated majority) ante opinion, court’s other ous, must turn to sources a “term Congress defined also asserts Unfortunate- for guidance. interpretation art” in —a history legislative ly, misdemeanors. art that includes very regarding little reveals certainly Congress 792. While F.3d at that definition. scope the intended thing to mean define right “has clearly intended broad- normally While from what something different to in- felony category Jacobson, en the means,” Benjamin

159 elude offenses, more criminal there is no distinguish misdemeanors from felonies for suggest so, evidence that in doing very Con- a long time.” 169 F.3d at 792. Con- gress intended to gress, “break[] time-hon- however, most likely failed to realize ored line between felonies and misdemean- that by retaining the least,” words “at it- ors” by including punishable offenses was by potentially disregarding that historic year’s one imprisonment within that distinction. defini- Graham, tion. 169 F.3d at 792. Furthermore, the overall structure of Indeed, if anything, by statute legislative no means dictates that mis- histo- ry of 101(a)(43) demeanors for one-year § amendments to INA which sentences imposed are suggests that be included within to lower wished the defini- tion of imprisonment “aggravated felony.” threshold from Assuming five 101(a)(48)(F) § years (G) INA year, to one & inadver- doing but mean to so refer to tently actually sentences included punishable imposed offenses ex- by and potential actly sentences, year. one Prior to the both the statute’s 1996 majority amendments, and the § Third Circuit sensibly INA 101 defined “aggra- conclude, see ante 152; alia, as, felony” vated inter 169 a crime of F.3d at no logical problem violence or a theft results offense “for which the from interpreting “crime of violence” imposed (regardless “theft only offense” to include suspension crimes that imprisonment) is at already are felonies. As the Graham least 6 years.” 101(a)(43)(F) § INA (G),& court concedes, itself “[s]ome one-year §§ (1994). sentences still would be felo- the amending legislation, Congress di- nies—those imposed felonies, is, rected that “is at years” least be struck for crimes with maximum terms of more by replaced year.” “at least one Ille- than year.”3 792. gal Immigration Reform and Immigrant Responsibility Act of (“IIRIRA”), Moreover, if “aggravated felony” is read 104-208, Pub.L. No. 110 Stat. 3009- to include misdemeanor violence, crimes of 30, 1996). 627 (Sept. Report Senate incongruous result would follow on the amendment stated only that IIRI- the commission of three or more misde- “[ljowers RA fine and imprisonment involving meanors against “crimes per- (from thresholds punishable son” is prison term up to Rep. to 1 year ... ).” S. No. 104th years, while the just commission of Cong., 1996 WL 180026. As the Graham involving a “crime of vio- noted, court year threshold was lence” punishable by prison term up to likely chosen because it “has been used to years.4 Compare 274(b)(1), § INA analysis 3. An of the other subsections of INA purpose for the assisting only his or 101(a)(43) § child, spouse, overwhelming reveals her parent. number offenses included within the defini- 4. incongruity This draws attention to another are, tion of ques- without problem with the felony” defini- tion, Only felonies. one—INA 101(a)(43). § tion in INA See generally Iris 101(a)(43)(N), § incorporates which viola- Bennett, Note, The Unconstitutionality of 274(a)(2), tions § INA 8 U.S.C. Immigration Consequences Nonuniform 1324(a)(2), concerning bringing Convictions, “AggravatedFelony" 74 N.Y.U.L. harboring of appears certain aliens—even (1999). 1720-29 To the extent Rev. contemplate the inclusion aof misdemeanor. such reentry as the of- subsection, however, Even with this it is not 276(b)(2), fense defined in INA entirely clear that misdemeanors meant 1326(b)(2), place consequences nonuniform included, only since a limited class of upon encompassed conduct “ag- within the 274(a)(2) offenses within INA actually con- gravated felony” category, based on differ- stitute misdemeanors law, ences in state criminal such nonuniform 101(a)(43)(N) underlying itself modifies the operation immigration federal law violates offense in excluding first the one textual limitation on the federal immi- offenses in which the alien gration power committed the explicitly forth set Con- lenity rule of that 274(b)(2), (suggesting F.3d at 264 1326(b)(1) § INA- -with § U.S.C. in rooted underpinnings has constitutional 1326(b)(2). majority The warning”). of “fair process notions “it is due by stating anomaly avoids this “[Bjefore punished be as can man of rewrite to our task neither case law his under the Federal criminal the eliminate to underlying offense the unmistakably’ within and ‘plainly be must clear dictates ignore to nor incongruity United of some statute.” Ante at 154. How- INA.” amended Inc., Labs., 3 F.3d Health v. Plaza States task to inter- certainly is our ever, it most Cir.1993) (internal (2d quotation 643, 649 in such provision INA ambiguous an pret denied, omitted), 512 U.S. cert. marks an incongruity when to avoid way as 2764, L.Ed.2d 878 1245, 129 114 S.Ct. readily avail- is interpretation alternative in (1994). equally applicable The rule is Wilson, 503 v. States United able. See in and sentencing, involving criminal eases 1351, 117 L.Ed.2d 334, 329, 112 S.Ct. U.S. standard governing cases in which civil v. Oceanic (1992); also see 593 Griffin or the same statute in a criminal is found 564, 575, 102 Contractors, Inc., 458 U.S. criminal has both (“[inter- statutory provision (1982) 3245, 973 73 L.Ed.2d S.Ct. See, e.g., States United applications. civil pro- would which of a statute pretations 1329, 305, 112 R.L.C., 291, S.Ct. 503 U.S. v. if avoided are to be results absurd duce (“[Tjhe (1992) [of rule 117 L.Ed.2d 559 consistent interpretations alternative only to resolve applied not available.”); lenity] has been purpose are legislative crim scope of about the substantive 257, issues 264 F.3d Dauray, 215 v. States United statutes, questions but to answer inal Cir.2000) (same). (2d attentiveness Such sentencing....”); severity of about when, in this particularly is warranted Co., Arms Thompson/Ctr. v. States a recent “construing instance, we are 2102, 10, 505, 112 & n. S.Ct. 518 504 U.S. pro- complex statute to a amendment (1992) (in action, rule civil 119 L.Ed.2d 308 and when unexpected result an duces ambigu construing lenity applies when to that Con- reason doubt strong there applica criminal that “has statute ous v. result.” Lewis intended gress States, 494 tions”); v. United Cir.1992). (2d Crandon 1206, Grinker, 1215 997, L.Ed.2d 152, 158, 108 S.Ct. 110 (in action, “gov (1990) when the a civil 132 Lenity The Rule III. criminal in a is set forth erning standard rule ambiguity apply inherent statute, it is light appropriate (G), I believe lenity”). lenity interpret rule of apply must those situa lenity “for We must reserve favor. Pacheco’s statute persists doubt reasonable in which a tions scope even intended a statute’s “ambig about lenity provides rule of after structure, leg language ‘the resort penal sanctions impose laws which uous motivating policies’ history, and islative against strictly construed to be States, 498 v. United Moskal Margiot v. statute.” United States Government.” 461, 108, 112 L.Ed.2d 103, 111 S.Ct. Cir.1982), cert. U.S. ta, (1990) v. United (quoting denied, 103 S.Ct. 461 U.S. Bifulco 381, 387, States, 100 S.Ct. 447 U.S. (1983); Dauray, also see L.Ed.2d subject be battery Texas would requirement Ar sault namely, under stitution — felon,” an "aggravated while removal immigration be uniform law I that ticle throughout same offense of the exact individual convicted See U.S. United States. on subject to removal I, (authorizing would Arizona cl. 4 Const. art. basis, sentence the maximum since Naturaliza Rule establish a "[t]o uniform year, is one in Texas added)). assault defi the INA Under tion” only See six months. it is in Arizona while felony,” an individual "aggravated nition Bennett, supra, at 1724-25. convicted, as example, of misdemeanor (1980)); 212(a)(9)(A)®, 65 L.Ed.2d 205 see also United Granderson, 39, 54, 1182(a)(9)(A)®. 511 U.S. generally See Immigration (apply- 127 L.Ed.2d 611 S.Ct. al„ et ChaRles Gordon Law text, structure, (rev. lenity 1998) rule “where 71.05[2][c] ed. Prooedure history fail to establish that (discussing the Gov- numerous and re- position unambiguously felons); ernment’s relating cor- strictions to aggravated rect”). al„ Thomas Alexander Aleinikoff et Immi- gration Citizenship: Process and Poli- Here, view, my “a doubt reasonable cy 1998) (same). ed. persists” as to the “statute’s intended Moskal, scope.” S.Ct. stake, With so much I am uncomfort- in Dauray, “[w]e 461. As have read the able “simply with this Court guessing § plain language of’ INA & intent,” about congressional Dauray, (G), “considered the traditional canons of F.3d at and respectfully dissent. construction, legisla- looked for history, potentially tive and canvassed rel-

evant case law. And left we are with no guess

more than a the proper as to mean- ambiguous language here.” 215 Accordingly,

F.3d at 264. we should con-

strue the statute to exclude misdemeanor

offenses.

Eugene K. SULLIVAN Thedis Beverly Sullivan, IV. Conclusion Plaintiffs- Appellants, “aggravated felony” The definition of § INA far-reaching implica- has go beyond

tions that well reen- Officer Damon C. GAGNIER and try sentencing context. Aliens who have DeWitt, York, Town of New convicted of aggravated felony been Defendants-Appellees. ineligible discretionary for most forms of No. 99-7207. deportation. relief from See INA 208(b)(2)(B)(i), Appeals, United States Court of 1158(b)(2)(B)® (asylum); INA Circuit. Second 1229b(a)(3) (can- 240A(a)(3), 8 U.S.C. removal); 240B(a)(l) cellation of Argued: & June (b)(1)(C), 1229c(a)(l) 8 U.S.C. Aug. Decided: (b)(1)(C) (voluntary departure). More- over, such conclusively pre- aliens are deportable,

sumed subject to be and are

mandatory expedited INS detention and

administrative removal proceedings. See 236(c), 238(a)-(c), §§ 8 U.S.C. 1228(a)-(c). 1226(c),

§§ Finally, aliens

convicted of felonies are not judicial

entitled review of their deten-

tion or of removal orders that are based convictions, 236(e),

upon §§ those see INA

242(a)(2)(C), 1226(e), §§

1252(a)(2)(C), may and- reenter Attorney

United States without the Gener- readmission,

al’s consent to apply for see

Case Details

Case Name: United States v. Carlos Pacheco

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 19, 2000

Citation: 225 F.3d 148

Docket Number: 1999

Court Abbreviation: 2d Cir.