Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2003

USA v. Frias
Precedential or Non-Precedential: Precedential

Docket No. 02-3688




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"USA v. Frias" (2003). 2003 Decisions. Paper 311.
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                       PRECEDENTIAL

                                 Filed July 30, 2003

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                 No. 02-3688


        UNITED STATES OF AMERICA
                      v.
            JOSE ANTONIO FRIAS
                   a/k/a
             JOSE ANTONIO FRIA
              Jose Antonio Frias,
                               Appellant

On Appeal From the United States District Court
    For the Eastern District of Pennsylvania
           (D.C. Crim. No. 02-cr-31-1)
  District Judge: Honorable J. Curtis Joyner

  Submitted Under Third Circuit LAR 34.1(a)
              June 23, 2003
   Before: SLOVITER, AMBRO, and BECKER,
                Circuit Judges.

             (Filed July 30, 2003)
       2


ELIZABETH T. HEY, ESQUIRE
ELAINE DEMASSE, ESQUIRE
Assistant Federal Defender,
 Senior Appellate Counsel
DAVID L. MCCOLGIN, ESQUIRE
Assistant Federal Defender,
 Supervising Appellate Attorney
MAUREEN KEARNEY ROWLEY,
 ESQUIRE
Chief Federal Defender
Federal Court Division
Defender Association of Philadelphia
Suite 540 West — Curtis Center
Independence Square West
Philadelphia, PA 19106
Counsel for Appellant
PATRICK L. MEEHAN, ESQUIRE
United States Attorney
LAURIE MAGID, ESQUIRE
Deputy United States Attorney
 for Policy and Appeals
ROBERT A. ZAUZMER, ESQUIRE
Assistant United States Attorney,
 Senior Appellate Counsel
KRISTIN R. HAYES, ESQUIRE
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
                             3



                OPINION OF THE COURT

BECKER, Circuit Judge.
   Jose Antonio Frias pleaded guilty in the District Court to
a charge of unlawful reentry to the United States after
deportation. 8 U.S.C. § 1326. Section 2L1.2(b) of the United
States Sentencing Guidelines requires a substantial
sentencing enhancement when an alien is convicted of
illegally returning to, or remaining in, the United States
after the commission of a felony drug trafficking offense.
Frias had been convicted in Pennsylvania for such an
offense — distributing cocaine — and was sentenced to 11
to 23 months of imprisonment but was paroled shortly after
completion of his minimum sentence. Over Frias’s
objection, the District Court applied the 16 level
enhancement in § 2L1.2(b) because it concluded that the
term “sentence imposed” in the Guideline means the
maximum term of imprisonment in the sentence, which
was 23 months.
  Frias argues that “sentence imposed” should be
construed as the time the alien actually served. For support
he looks to Application Note 1(A)(iv) which provides that if
any portion of a “sentence of imprisonment was probated,
suspended, deferred, or stayed, ‘sentence imposed’ refers
only to the portion that was not probated, suspended,
deferred or stayed.” The Government contends that the
plain language of the Application Note excludes sentences
that were paroled, and that the history of the November
2001 amendment to § 2L1.2(b) reflects that the Sentencing
Commission considered the “time served” approach and
rejected it in favor of the current formulation. Further, the
Government notes that federal criminal law generally
regards the sentence imposed as meaning the maximum
term of incarceration, and that such a definition is used in
U.S.S.G. § 4A1.2, the section of the Guidelines concerning
the criminal history of recidivists.
  We find the Government’s interpretation of “sentence
imposed” in § 2L1.2(b) to be persuasive. We are satisfied
that the District Court correctly construed this term as
                               4


meaning the maximum term of imprisonment in an
indeterminate sentence. We will therefore affirm the
judgment.

                              I.
  Frias is a native of the Dominican Republic. On May 20,
1999, he was convicted in Pennsylvania state court for
distributing cocaine and was sentenced to a term of 11 to
23 months incarceration. The court ordered that Frias serve
his sentence in county prison, and that upon the
completion of the minimum sentence he “shall be released
without a petition upon approval of a suitable parole plan”
by the county parole office. After having served slightly less
than a year in prison, he was paroled. The Immigration and
Naturalization Service then commenced deportation
proceedings based on the felony conviction, and Frias was
deported from the United States in July 2000.
   Acting on a tip, INS agents arrested Frias on January 13,
2002 in Reading, Pennsylvania. He had not received
permission to reenter the United States after his
deportation. A grand jury empaneled in the Eastern District
of Pennsylvania returned an indictment charging Frias with
one count of illegal entry after deportation in violation of 8
U.S.C. § 1326. Frias pleaded guilty to the charge. Section
2L1.2 of the Sentencing Guidelines applies to convictions
under § 1326 and provides significant sentencing
enhancements if the alien was deported after a conviction
for drug trafficking. As amended in November 2001,
§ 2L1.2(b)(1) provides in relevant part:
    If the defendant previously was deported, or unlawfully
    remained in the United States, after —
    (A) a conviction for a felony that is (i) a drug trafficking
    offense for which the sentence imposed exceeded 13
    months . . . increase by 16 levels;
    (B) a conviction for a felony drug trafficking offense for
    which the sentence imposed was 13 months or less,
    increase by 12 levels.
  At sentencing, Frias argued that the term “sentence
imposed” in § 2L1.2(b)(1) should mean the sentence actually
                             5


served. Because he served a sentence less than 13 months
in the county jail, Frias submits that he should be subject
to the lesser 12 level enhancement. The District Court
rejected Frias’s reasoning and imposed the greater 16 level
enhancement. The Court concluded that the term “sentence
imposed” means the maximum term of an indeterminate
sentence, relying in part on Chapter 4 of the Guidelines,
which deals with criminal history and defines “sentence of
imprisonment” as the “maximum sentence imposed.” See
U.S.S.G. § 4A.1.2(b). After granting a three-level reduction
for acceptance of responsibility under § 3E1.1, the Court
sentenced Frias to a 46 month term of imprisonment.
   The District Court had jurisdiction under 18 U.S.C.
§ 3231 and we have appellate jurisdiction pursuant to 28
U.S.C. § 1291. We review the District Court’s construction
of the Sentencing Guidelines de novo. United States v.
Edwards, 

, 112 (3d Cir. 2002).

                            II.
   Section 2L1.2 of the Guidelines was significantly
amended in November 2001, in response to criticism that
the former version, which required a 16 level enhancement
for a prior conviction of an aggravated felony, caused
“disproportionate penalties” because of the broad scope of
crimes defined as aggravated felonies in 8 U.S.C.
§ 1101(a)(43) that were incorporated by reference. See
United States Sentencing Guidelines Manual, Appendix C,
Amendment 632. The amendment sought to alleviate this
problem by providing a range of sentencing enhancements
“depending on the seriousness of the prior aggravated
felony and the dangerousness of the defendant.” 

trafficking offenses, the amended version of § 2L1.2
requires a 16 level enhancement if the “sentence imposed”
was greater than 13 months, and a 12 level enhancement
if it was 13 months or less.
  Frias’s argument that the term “sentence imposed”
should be construed to mean the term actually served is
based upon Application Note 1(A)(iv) to § 2L1.2, which
states that if any portion of a sentence of imprisonment
“was probated, suspended, deferred, or stayed, ‘sentence
                             6


imposed’ refers only to the portion that was not probated,
suspended, deferred, or stayed.” Although he acknowledges
that the Application Note does not refer to parole, Frias
contends that parole is functionally similar to those
categories listed because “the remainder of [a parolee’s]
term in prison in fact has been deferred, stayed or
suspended.” Accordingly, Frias submits that the term of his
sentence that he did not serve because he was paroled
should not count in the Court’s computation of the length
of “sentence imposed,” i.e., for parolees, “sentence imposed”
is equivalent to the time actually served.
  The Government’s response essentially invokes the
maxim expressio unius est exclusio alterius; it emphasizes
that the Application Note to which Frias cites does not
include “paroled.” To bolster its argument that the
Sentencing Commission intentionally omitted parole from
the list of actions that restrict the term “sentence imposed”
to “time served,” the Government examines the history of
the 2001 amendment to § 2L1.2. It notes that in January
2001, the Commission published notice of a proposed
amendment to § 2L1.2 that would have conditioned
enhancement based upon a prior aggravated felony on the
time “actually served” by the defendant. 8 Fed. Reg. 7962,
8008-09 (January 26, 2001). The Commission also
requested “comment regarding whether the enhancement
. . . for a previous conviction for an aggravated felony
should be graduated based on a factor other than, or in
addition to, the period of imprisonment the defendant
actually served for the aggravated felony.” 

  One of the responses to the Commission’s comment
invitation came from the Commission’s Probation Officers
Advisory Group (“POAG”), detailing three objections to the
time actually served approach of the proposed amendment,
two of which are relevant here. POAG opined that the “time
served methodology is contrary to the philosophical
underpinnings of Chapter Four” of the Guidelines, which
concerns the computation of criminal history. Additionally,
POAG submitted that the time served approach might not
be a fair measure of severity because of the disparity that
results from “varying charging and plea practices, time
served in parole- and non-parole systems, alternative
                              7


sentences whose custodial component is not the traditional
form of incarceration, early releases prompted by prison
overcrowding, time served for revocation of supervision, and
premature releases to detainers, particularly those in the
cases of deportable aliens.”
  In light of these concerns, POAG recommended that an
amendment to § 2L1.2 be based on the “traditional measure
of severity, i.e., length of sentence imposed.” The final
version of the amendment to § 2L1.2 adopted this
recommendation in that it utilized a graduated system of
sentence enhancements based upon the “sentence
imposed” rather than “time actually served.” We find this
recitation of the history of the amendment to § 2L1.2 highly
informative. It points strongly to the conclusion that Frias’s
general interpretation of “sentence imposed” as time served
is not correct, except for the enumerated categories in
Application Note 1(A)(iv): suspensions, probations, deferrals,
and stays of sentences.
  This does not end our analysis, however, because we
must still decide the proper interpretation of the “sentence
imposed.” The Government provides several sources to help
in this inquiry. First, the Government, like the District
Court, points to Chapter 4 of the Guidelines, which
concerns the computation of sentence enhancements for
recidivists. Section 4A1.2(b) defines the term “sentence of
imprisonment” used in that Chapter as “a sentence of
incarceration and refers to the maximum sentence
imposed.” Application Note 2 to § 4A1.2 further explains:
    the length of a sentence of imprisonment is the stated
    maximum (e.g., in the case of a determinate sentence
    of five years, the stated maximum is five years; in the
    case of an indeterminate sentence of one to five years,
    the stated maximum is five years; in the case of an
    indeterminate sentence for a term not to exceed five
    years, the stated maximum is five years . . .). That is,
    criminal history points are based on the sentence
    pronounced, not the length of time actually served.
  Frias contends that the reference to Chapter 4 is
misplaced because the term “sentence of imprisonment” is
not used in § 2L1.2. Furthermore, § 2L1.2 does not refer to
                             8


the terms used in Chapter 4, and the Sentencing
Commission has cautioned against the appropriation of
definitions from other sections. See § 1B1.1, Application
Note 2 (stating that definitions of terms “are not designed
for general applicability; therefore, their applicability to
sections other than those expressly referenced must be on
a case by case basis”). Finally, Frias argues that the
Sentencing Commission is not logically compelled to apply
the same definition in these two sections because the prior
offense plays a different role in the respective computation
process of the two sections.
   The Government disputes Frias’s conclusion that there is
a theoretical difference between Chapter 4 and § 2L1.2,
arguing that each section is “clearly aimed at the same
thing, which is varying the punishment based on the
criminal record and thus the expected dangerousness of the
offender.” We agree, believing that, while it may not always
be appropriate to look at other sections of the Guidelines to
interpret a term, such a course is warranted in this case.
  This construction is supported by cognate case law. In
United States v. Rodriguez-Arreola, 

(8th Cir.
2002), the Court of Appeals for the Eighth Circuit looked to
Chapter 4 in coming to its conclusion that the term
“sentence imposed” in § 2L1.2 means the maximum term of
imprisonment. The Court also explained that indeterminate
sentences were understood at common law to be sentences
for the maximum term for which the defendant might be
imprisoned. 

(quotation omitted). It is therefore
not surprising that this understanding of indeterminate
sentences “has been consistently applied by federal courts
in resolving related Guidelines issues.” 

explained:
    For example, Application Note 5 of the prior version of
    § 2L1.2 encouraged downward departures in some
    instances where “the term of imprisonment imposed”
    did not exceed one year. Courts read that phrase to
    mean the maximum term imposed by an indeterminate
    state court sentence. See United States v. Chavez-
    Valenzuela, 

, 1040 (10th Cir. 1998).
    Courts likewise read the phrase “term of imprisonment
    imposed” in Application Note 7 of an earlier version of
                                  9


       § 2L1.2 to mean the upper end of an indeterminate
       sentence. See United States v. Galicia-Delgado, 

, 520-22 (2d Cir. 1997); United States v.
       Quinonez-Terrazas, 

, 383 (5th Cir. 1996).

-67.
   We also used this construction in Bovkun v. Ashcroft, 

, 170-71 (3d Cr. 2002), in which we held that
“term of imprisonment” found in 8 U.S.C. § 1101(a)(43) of
the Immigration and Nationality Act meant the maximum
term for an indeterminate sentence. Bovkun is particularly
relevant to this case because it supports another
component of the Government’s argument: that parole is
not equivalent to other actions, such as suspension, that
result in a shorter sentence served. We noted that “[u]nder
Pennsylvania law, the minimum term imposed on a prior
sentence merely sets the date prior to which a prisoner may
not be paroled.” 

(quoting Rogers v. Pennsylvania
Bd. of Probation and Parole, 

, 321 n.2 (Pa.
1999)). We further explained the relevance of parole to the
definition of a “term of imprisonment”:
       Accordingly, petitioner’s sentence of 11 to 23 months
       meant that he had to serve at least 11 months and
       would not serve more than 23 months. This sentence
       was functionally the same as a sentence of 23 months,
       with parole eligibility beginning after 11 months. By
       contrast, petitioner’s sentence was not at all
       comparable to a simple sentence of 11 months. Under
       a simple sentence of 11 months, he would have been
       guaranteed release from prison at the expiration of 11
       months, and upon release he would not have been
       subject to any of the restrictions that commonly
       accompany parole. We therefore treat the petitioner’s
       sentence for present purposes as if it were a simple
       sentence of 23 months . . . .
Id.1

1. Frias attempts to dissuade us from applying the logic of Bovkun to
this appeal by claiming that we misinterpreted Pennsylvania law in that
case. He notes that Pennsylvania law provides the Board of Parole
jurisdiction only when the maximum sentence exceeds 24 months. See
                                   10


   Frias contends that construing “sentence imposed” in
§ 2L1.2 as the maximum term of the sentence would lead to
“illogical results.” He cites the supposed disparate
treatment of a defendant who receives a sentence of 23
months, of which 20 months is suspended, compared with
a person who is sentenced to 23 months and then paroled
after three months. Because Application Note 1(A)(iv) to
§ 2L1.2 states that the suspended portion of a sentence is
not included in the definition of “sentence imposed,” the
former defendant would have a three month sentence and
thus qualify for a 12 level enhancement. Parole is not
included in the Application Note, however, and thus the
latter defendant would be deemed to have had a 23 month
sentence imposed and would therefore receive a 16 level
enhancement.
   The Government disagrees that such a result is illogical
and disputes Frias’s criticism of Bovkun. It contends that in
the case of a suspended sentence, “the sentencing judge is
making a firm decision at the time of sentencing regarding
the amount of imprisonment imposed.” In contrast, when
providing the opportunity for parole, “the judge is creating
the possibility of a longer sentence of imprisonment which
is generally ameliorated only by future good conduct . . .
[and] there are conditions which attend to parole even after
release.” We find persuasive the Government’s explanation
about the distinctive qualities of parole, particularly in view

61 Pa. C.S. § 331.17 (stating that powers of Board of Parole do not
extend to “persons sentenced for less than two years”). In such
situations, the Board may not grant parole before the expiration of the
minimum term of the sentence. See 61 Pa. C.S. § 331.21. In contrast,
when the maximum sentence is less than two years, the sentencing
court is free to grant parole without supervision by the Board. See 61 Pa.
C.S. § 331.26. That is why when Frias was sentenced to a maximum
term of 23 months, the sentencing court had the authority to mandate
his “release without a petition” upon completion of his minimum
sentence of 11 months and approval of a suitable parole plan by the
county parole office. We do not find this distinction relevant to the
interpretation of “sentence imposed” in § 2L1.2 because regardless of
whether the Board of Parole or the state court has the authority to grant
parole, Frias was not guaranteed release at the completion of his
minimum sentence.
                              11


of the fact that the other categories enumerated in
Application Note 1(A)(iv) (probation, deferral, and stay) are
similar to suspensions and differ from parole in the same
way.
  For the foregoing reasons, we hold that the term
“sentence imposed” in § 2L1.2 means the maximum term of
imprisonment in an indeterminate sentence, subject, of
course, to the exceptions for probations, suspensions,
deferrals, and stays as provided in Application Note 1(A)(iv).
Accordingly, we will affirm the judgment of the District
Court.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit