UNITED STATES of America, Appellee, v. Carlos PACHECO, Defendant-Appellant, 225 F.3d 148

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.” DefendanL-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)(l)(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. BACKGROUND 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 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 1-294, 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 1-294 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 1-294 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 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)(l)(

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 M” (Emphasisin 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)(l)(

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)(l)(

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)(l)(

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)(l)(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 for shoplifting and (2) the August 16, 1995 conviction for simple domestic assault — plus (3) his April 14, 1992 conviction for larceny under $500, see supra at 149. As noted above, each of these convictions earned Pacheco a suspended one-year sentence at Rhode Island’s Adult Correctional Institute, followed by one year of probation.

In support of its position, the government argued that the term “aggravated felony” must be understood for purposes of the Guideline as it is understood for purposes of the INA, pointing out that the Guideline incorporates the statutory definition by reference. The government also cited our decision in United States v. Pornes-Garcia, 171 F.3d 142, 145 (2d Cir.1999) (holding that a state drug trafficking felony conviction that would have been a misdemeanor under federal law was an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(

B) for purposes of the U.S.S.G. § 2L1.2(b)(l)(

A) enhancement). The government argued that “for federal sentencing purposes under the Guidelines, it is irrelevant whether a state categorizes a particular offense as a ‘misdemeanor’; the federal definition of the term of art ‘aggravated felony’ applies,” adding that “such definition includes those enumerated offenses for which a term of imprisonment of at least one year was imposed.” The government also provided the district court with a copy of United States v.

Graham, 169 F.3d 787 (3d Cir.1999), in which the court addressed “an - issue of first impression in the federal courts,” id. at 791, and held, albeit reluctantly, that Congress’ definition of the term “aggravated felony” for the purposes of the INA was a “term of art” that “includes certain misdemeanants who receive a sentence of one year.” Id. at 792. At the sentencing hearing on December 21, 1999, the district court relied on Graham and applied the enhancement. The court reasoned: Although the definition of aggravated felony found in 8 U.S.C.

Section 1101(a)(43)(

F) and (

G) is awkwardly worded, this court concludes that for sentencing purposes, Congress intended to include misdemeanors in which the sentence imposed is one year. In reaching this conclusion, the Court adopts the reasoning of the Third Circuit in [Graham ].... In determining Pacheco’s sentence, the court added the 16-level enhancement to the base level of 8, yielding a total offense level of 24, which — after a 3-level downward adjustment for acceptance of responsibility — carried a sentencing range of 46-57 months.

The court sentenced Pacheco to 46 months’ imprisonment, as “the lowest end that I can sentence you to,” followed by three years’ supervised release, and ordered Pacheco to pay a special assessment of $100. The court concluded as follows: Now, I just want the record to reflect I think it’s an incredibly harsh sentence, and it seems for a misdemeanor crime that — the way the statutes read, one year or more means a person with misdemeanors where they can get up to a year, they qualify for this sentence.

And I don’t — I can’t imagine that the sentencing reformers really meant this situation exists, but that’s not according to the Third Circuit. Pacheco was sentenced accordingly, and this appeal followed. DISCUSSION 1. Applicable Law

Section 2L1.2 of the Sentencing Guidelines defines the offense level for violations of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2. Subsection (

a) specifies a base offense level of 8, while subsection (b)(1) provides for a mandatory sentencing enhancement if the defendant previously was deported after a criminal conviction, stating as follows: (

A) If the conviction was for an aggravated felony, increase by 16 levels. (

B) If the conviction was for (

i) any other felony, or (ii) three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses, increase by 4 levels. Id. The Commentary explains that “ ‘[aggravated felony,’ is defined at 8 U.S.C. § 1101(a)(43).” Id., comment., n. 1. The same note explains that “ ‘[f]elony offense’ means any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” Id. (Emphasis added.)

Section 101(a)(43) of the INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, 110 Stat. 3009, 546 (“IIRIRA”), codified at 8 U.S.C. § 1101(a)(43), explains in relevant part that “[a]s used in this

Chapter [Immigration and Nationality], ... [t]he term ‘aggravated felony’ means- — -...” (

F) a crime of violence ... for which the term of imprisonment at least one year; (

G) a theft offense ... or burglary offense for which the term of imprisonment at least one year[.] 8 U.S.C. § 1101(a)(43)(F) & (G) (Supp. Ill 1997) (emphasis added). Footnote two reads, “So in original. Probably should be preceded by ‘is.’ ” Id.; see also 8 U.S.C.A. § 1101(a)(43)(F) & (G) (West 1999) (same). This scrivener’s error resulted from the 1996 amendments to the INA. Prior to the enactment of IIRIRA, the INA categorized as aggravated felonies all offenses of theft or violence “for which the term of imprisonment imposed ... is at least 5 years.” 8 U.S.C.A. § 1101(a)(48)(F) & (G) (West 1995).

IIRIRA lowered the minimum term of qualifying sentences from five years to one year. See Pub.L. No. 104-208, Div. C, § 321(a)(3), 110 Stat. 3009, 627 (amending the provisions “by striking ‘is at least 5 years’ each place it appears and inserting ‘at least one year’ ”). The question before us is whether this faulty language obscures the statutory intent to such a degree that we cannot rightly say that Pacheco’s petit larceny and simple assault offenses are punishable upon his conviction for illegal reentry as aggravated felonies.

Although there is persuasive authority in other circuits on this issue, we answer the question as one of first impression for our Court. 2. Standard of Review Because the issue on appeal is the

interpretation of the aggravated felony statute, our review is de novo. See Pornes-Garcia, 171 F.3d at 144. (“Where, as here, a sentencing court’s application of the Guidelines ‘approaches a purely legal question,’ we review that application de novo.”) (quoting United States v. Medina, 74 F.3d 413, 417 (2d Cir.1996)). 3. Does a Misdemeanor Qualify as an “Aggravated Felony” under

Section 2L1.2? After carefully considering the parties’ arguments, and despite our own “misgivings” that Congress, in its zeal to deter deportable non-citizens from re-entering this country, has “improvidently, if not inadvertently, broken the historic line of division between felonies and misdemeanors,” 169 F.3d at 787, we find that the intent of Sections 1101(a)(43)(F) & (

G) is clear enough to affirm the district court’s application of the aggravated felony enhancement in this case. We note that the two principal arguments advanced by Pacheco before us follow the precise contours of appellant Graham’s before the Third Circuit, and we endorse the findings and the reasoning of that court. Pacheco’s first argument—that we must construe the phrase “for which the term of imprisonment [is] at least one year,” 8 U.S.C. § 1101(a)(43)(F) & (G), as referring to the authorized minimum term of imprisonment, rather than to the sentence actually imposed—is unconvincing.

First, we note that all courts of appeals that have considered the argument that the missing verb renders the meanings of

Section 1101(a)(43)(F) & (

G) indiscernible have rejected that contention. See United States v. Maldonado-Ramirez, 216 F.3d 940, 943-44 (11th Cir.2000); United States v. Banda-Zamora, 178 F.3d 728, 729 (5th Cir.1999) (“This drafting snafu does not make [§ 1101(a)(43)(F) ] unconstitutionally vague.”); Graham, 169 F.3d at 789-91.

Next, with regard to whether Congress was concerned with statutory minimums or actual sentences imposed when it enacted IIRIRA, we note that the INA instructs as follows: Any 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. 8 U.S.C. § 1101(a)(48)(B).

This subsection was added in the IIRIRA amendments and replaced the phrase “(regardless of any suspension of imprisonment)” that occurred in the individual statutory

definitions of aggravated felonies previously found at 8 U.S.C. § 1101(a)(43). See id. (West 1995). We agree with the Third Circuit that this language indicates that “the actual term imposed is ordinarily the definitional touchstone.” 169 F.3d at 790; accord United States v.

Guzmam-Bera, 216 F.3d 1019, 1020 (11th Cir.2000) (finding that the aggravated felony enhancement for illegal reentry did not apply to defendant who was initially sentenced to five years’ probation for grand theft, third degree, since a subsequent revocation of probation and imposition of 18-month prison term occurred after his illegal reentry into the United States); Alberto-Gonzalez v. INS, 215 F.3d 906, 908 (9th Cir.2000) (concluding that the phrase “for which the term of imprisonment [is] one year or more” in

section 1101(a)(43)(

G) refers to the actual sentence imposed). Furthermore, as the statute makes clear, it is immaterial that Pacheco’s sentence was suspended. See United States v. Tejeda-Perez, 199 F.3d 981, 983 (8th Cir.1999) (finding that defendant’s prior second degree theft felony conviction required application of the aggravated felony enhancement at sentencing for illegal reentry, even though the one-to-fifteen year sentence imposed was suspended); cf.

Maldonado-Ramirez, 216 F.3d 940, 942-43 (finding that defendant’s multi-year sentence for prior attempted burglary and aggravated assault convictions required imposition of the aggravated felony enhancement upon illegal reentry although defendant had served only seven months of the sentence).

Finally, we note that nothing in the legislative history leads us to doubt our conclusion that a misdemeanor may, in some cases and consistent with legislative intent, fall within the INA’s definition of “aggravated felony.” The House Report shows that IIRIRA 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: This

section amends INA

section 101(a)(43) (as amended by

section 440(

e) of the AEDPA (Public Law 104-132)), the definition of “aggravated felony,” by: adding crimes of rape and sexual abuse of a minor; lowering the fine threshold for crimes relating to money laundering and certain illegal monetary transactions from $100,000 to $10,000; lowering the imprisonment threshold for crimes of theft, violence, racketeering, and document fraud from 5 years to 1 year; and lowering the loss threshold for crimes of tax evasion and fraud and deceit from $200,000 to $10,000. H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess., at 494 (Sept. 24, 1996) (emphasis added).

Nothing in the legislative history indicates, however, that in lowering the term of imprisonment to one year, Congress intended to exclude a conviction that otherwise meets this 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. See Maldonado-Ramirez, 216 F.3d at 944.

With regard to Pacheco’s second principal contention before us, that characterizing a misdemeanor as an aggravated felony is at odds with other uses of “felony” in federal law and with other uses of “aggravated felony” in the INA itself, we are unpersuaded that any of these arguments can change the disposition of his case. The “whole act” rule of statutory construction exhorts us to read a

section of a statute not “in isolation from the context of the whole Act” but to “look to the provisions of the whole law, and to its object and policy,” Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962) (internal quotation marks omitted). As we have put it, we must “interpret [a] specific provision in a way that renders it consistent with the tenor and structure of the whole act or statutory scheme of which it is a part.” United States v.

Bonanno Organized Crime Family of La Cosa Nostra, 879 F.2d 20, 24 (2d Cir.1989) (citing 2A Sutherland Statutory Construction, § 46.05 (4th ed. 1984)). Despite Pacheco’s contention to the contrary, we find a “whole act” reading to favor the government’s view. Pacheco would have us read certain provisions of the Sentencing Guidelines and of the INA in isolation, such as the statement in U.S.S.G. § 2L1.2(b)(l)(

A) Application Note 1 that “ ‘[fjelony offense’ means any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” We do not see how that definition of “felony,” standing alone, renders inoperative the IIRIRA amendments to the INA’s definition of “aggravated felony.” Pacheco also points us to other subsections of the aggravated felony statute, such as § 1101(a)(43)(T), that speak in terms of a sentence that “may be imposed,” as belying the clarity of Congress’ intent to characterize an offense as an aggravated felony based on the actual sentence imposed.

These sections, however, merely show that “Congress knows how to distinguish between the penalty authorized for a crime and the penalty actually imposed in a particular case.” Graham, 169 F.3d at 791. Finally, Pacheco’s best argument lies in the arguable inconsistency contained within 8 U.S.C. § 1326 itself, the statute defining the underlying offense of illegal reentry after deportation.

The statute provides separate penalties for aliens who have committed “three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony),” § 1326(b)(1) (providing maximum sentence of 10 years), and for aliens who have been removed “subsequent to a conviction for commission of an aggravated felony,” § 1326(b)(2) (maximum sentence of 20 years).

We agree that it seems incongruous for a misdemeanor offense to be a predicate to an “aggravated felony,” where the statute defining the offense attempts to differentiate between 1) misdemeanants and felons who are not aggravated felons on the one hand and 2) aggravated felons on the other. However, where U.S.S.G. § 2Ll.l(b)(l)(

A) incorporates by reference 8 U.S.C. § 1101(a)(43) as the definition of aggravated felony, and where that statutory definition is explicit on its face that certain offenses punished by a one-year sentence are included, it is neither our task to rewrite the definition of the underlying offense to eliminate the incongruity nor to ignore the clear dictates of the amended INA. See Graham, 169 F.3d at 792-93 (“[Rjather than making the underlying offense conform to the label Congress erroneously used to describe

section 1101(a)(43) as amended, we give effect to the definition of the underlying offense and ignore the label.”). As the Third Circuit noted, Congress would have done better at the time of the 1996 amendments to dispense with the term “aggravated felony” and to refer to this wide class of convictions as “aggravated offenses.” See id. at 792. Congress’ failure to do so, however, does not give us an excuse to ignore the clear meaning of the amendments to the INA and remand for a less severe sentence. In accordance with the foregoing, the judgment of the district court is hereby affirmed. .

Without mentioning the missing verb, the Fourth Circuit has recently held that "[u]nder the plain language of [§ 1101(a)(43)(F) ], there is no requirement that the offense actually have been a felony, as that term is conventionally understood,” in finding a petitioner deportable for a misdemeanor offense of sexual battery under Virginia law. Wireko v. Reno, 211 F.3d 833, 835 (4th Cir.2000). .

The notion that the "aggravated felony” category constitutes a subset of the broader "felony” category is reinforced by the usage of both terms in INA § 274(b)(1), 8 U.S.C. § 1326(b)(1), which authorizes imprisonment up to 10 years for illegal reentry by an alien who was deported after being convicted for commission of a "felony (other than an aggravated felony)” (emphasis added). For those illegal reentrants who were deported after being convicted for commission of an aggravated felony, the punishment (up to 20 years' imprisonment) is set forth in the following subsection, INA § 274(b)(2), 8 U.S.C. § 1326(b)(2).

Indeed, the majority itself acknowledges that these provisions are "incongruous” with any reading of the statute under which "aggravated felony” includes misdemeanors. Ante at 154. Especially given an already ambiguous statutory text, we should not presume lightly that Congress intended such an absurd result. See United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992).