No. 96-8436 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 GARY ADKINS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General WILLIAM C. BROWN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether a foreign drug trafficking conviction that occurred in 1988 was properly used as an aggravated felony to enhance petitioner's maximum authorized sentence for violation of 8 U.S.C. 1326. 2. Whether a foreign drug trafficking conviction that yielded a sentence of less than five years' imprisonment was properly used as an aggravated felony to enhance petitioner's maximum authorized sentence for violation of 8 U.S.C. 1326. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8436 GARY ADKINS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The decision of the court of appeals (Pet. App. A1-A5) is reported at 102 F.3d 111. JURISDICTION The judgment of the court of appeals was entered on December 5, 1996. A petition for rehearing was denied on January 2, 1997. Pet. App. C1-C2. The petition for a writ of certiorari was filed on March 31, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT Following a plea of guilty in the United States District Court for the Eastern District of Virginia, petitioner was ---------------------------------------- Page Break ---------------------------------------- 2 convicted of reentering the United States, after having been deported, without the prior consent of the Attorney General to reapply for admission, in violation of 8 U.S.C. 1326, and of failure to appear for sentencing, in violation of 18 U.S.C. 3146(a) (l). He was sentenced to consecutive sentences of 46 months' imprisonment and 11 months' imprisonment, respectively, to be followed by three years' supervised release. Pet. App. B1- B11. The court of appeals affirmed. Pet. App. A1-A5. 1. a. On January 27, 1988, petitioner, a national of South Africa, was convicted in a court in Durban, South Africa, of drug trafficking involving 11 kilograms of cannabis, for which he was sentenced to 20 months' imprisonment or a fine of R2,000, and to a further term of two years' imprisonment that was suspended for four years. Pet. App. A2; Gov't Memo. on Sentencing Factors, Oct. 20, 1994, 8 & n.4. On February 9, 1988, petitioner entered the United States without revealing his drug trafficking conviction. Pet. App. A2. In December 1989, the Immigration and Naturalization Service (INS) ordered petitioner deported from the United States and petitioner left the country on December 13, 1989. Ibid. On October 19, 1990, petitioner attempted to obtain permission to reenter the United States, but that permission was denied. Pet. App. A2. On May 28, 1992, the INS found petitioner in the United States. Petitioner asserts that he reentered the United States on or about September 15, 1991. Id. at A2 n.1. Investigation revealed that petitioner had not received the prior ---------------------------------------- Page Break ---------------------------------------- 3 consent of the Attorney General to reapply for admission, as required under 8 U.S.C. 1326 when an alien who has been previously deported returns to the United States. Id. at A2. b. Section 1326(a) provides that, subject to Section 1326(b), a previously deported alien who reenters the country without obtaining the prior consent of the Attorney General to reapply for admission shall be sentenced, to a term of imprisonment up to two years, or fined under Title 18, or both. At the time of petitioner's Section 1326 violation, Section 1326(b) (2) authorized a term of imprisonment of up to 15 years in a case where an alien who commits such an offense was convicted of an aggravated felony (defined in 8 U.S.C. 1101(a) (43)) before his deportation. 1 2. a. On July 28, 1994, petitioner was charged by information in the United States District Court for the Eastern District of Virginia with being found in the United States, after ___________________(footnotes) 1 After petitioner's offense, Congress amended Section 1326(b) (2) to increase ,the maximum term of imprisonment authorized in cases involving aggravated felonies before deportation to 20 years' imprisonment. Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Act), Pub. L. No. 103- 322, Title 13, 130001(b), 108 Stat. 2023. Congress further amended Section 1326 on April 24, 1996, and on September 30, 1996, but the changes effected by those amendments are not relevant to the disposition of this case except as specifically noted below. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. NO. 104-132, Title IV, 401(c), 438(b), 441(a) , 110 Stat. 1267-1268, 1276, 1279; Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, Title III 305(b), 308(d) (4) (J), 308(e) (1) (K), 308(e) (14) (A), 324, 110 Stat. 3009-606, 3009-618, 3009-619, 3009-620, 3009-629. Unless otherwise indicated, references to Section 1326 are to the version in effect at the time of petitioner's Section 1326 offense. ---------------------------------------- Page Break ---------------------------------------- 4 having been deported, without prior consent of the Attorney General to reapply for admission, in violation of 8 U.S.C. 1326. On that same date, pursuant to a written plea agreement, petitioner entered a plea of guilty to the information. Pet. App. A3. During the course of the preparation of the presentence report, the government realized that, based on petitioner's prior conviction which constituted an aggravated felony, the statute authorizes a maximum imprisonment term of 15 years according to United States v. Crawford, 18 F.3d 1173 (4th Cir.), cert. denied, 513 Us. 860 (1994), rather than two years as indicated in the plea agreement, and the Sentencing Guidelines provide for a 16- level increase in the offense level. Amended Gov't Memo. on Sentencing Factors, Oct. 27, 1994, 1-9. Petitioner objected, contending that his felony conviction should not be treated as an aggravated felony so that he should not be subject to the enhanced statutory or Guidelines punishment. Pet. Memo. on Sentencing Factors, Oct. 27, 1994, 2-5. Petitioner failed to appear for his sentencing on November 1, 1994, and a bench warrant was issued for his arrest. Pet. App. A3. b. On April 13, 1995, the United States Coast Guard arrested petitioner and, on April 26, 1995, petitioner was indicted in the United States District Court for the Eastern District of Virginia, for failure to appear for sentencing, in violation of 18 U.S.C. 3146(a) (1). Pet. App. A3. On June 2, 1995, petitioner pleaded guilty to the indictment, without a written plea agreement. Ibid. ---------------------------------------- Page Break ---------------------------------------- 5 On July 24, 1995, petitioner withdrew his guilty plea to the Section 1326 charge that he had entered on July 28, 1994, because of the disagreement between the government and petitioner that had arisen later regarding the authorized sentence. Pet. App. A3. At the same time, petitioner pleaded guilty anew to the Section 1326 information, but not pursuant to a plea agreement. Ibid. c. On August 29, 1995, the court sentenced petitioner on both-convictions. The court held that petitioner's foreign conviction constituted an aggravated felony so that the enhanced maximum punishment under 8 U.S.C. 1326(b) (2) and the 16-level increase under the Sentencing Guidelines applied to his case. The court rejected petitioner's contention that his foreign conviction should not be treated as an aggravated felony because it predated the statutory amendment that added foreign convictions to the aggravated felony definition in 8 U.S.C. 1101(a) (43) and because the sentence imposed for that conviction was less than five years. Aug. 19, 1995, Tr. 3-14. The court held that the effective date provision for the amendment to Section 1101(a) (43) mandated that prior foreign convictions be treated as aggravated felonies for purposes of Section 1326(b) (2), regardless of whether the foreign conviction predated the amendment's enactment, so long as the substantive Section 1326 offense for which the defendant was being sentenced postdated the effective date of the amendment. Id. at 14. The court also held that the five-year term of imprisonment ---------------------------------------- Page Break ---------------------------------------- 6 restriction in the definition of aggravated felony applies only to crimes of violence, not to foreign convictions. Id. at 15. The district court therefore sentenced petitioner to 46 months' imprisonment on the illegal reentry offense and to 11 months' imprisonment on the failure to appear offense, the sentences to run consecutively. Id. at 22. 3. The court of appeals affirmed. Pet. App. A1-A5. Relying on its then-recent decision in United States v. Campbell, 94 F.3d 125 (4th Cir. 1996), cert. denied, 117 S. Ct. 1847 (1997) , the court ruled that petitioner's prior foreign conviction constituted an aggravated felony because the effective date provision of the 1990 amendment adding foreign convictions to the aggravated felony definition "was to provide an effective date for the relevant offense of illegal re-entry into the United States after deportation, and was not applicable to the predicate offense that may be used to enhance the sentence." Pet. App. A4 (quoting Campbell, 94 F.3d at 128). Petitioner's argument therefore was foreclosed because he admitted that he reentered the country in September 1991, well after the effective date of the amendment. Ibid. 2 The court rejected petitioner's contention that the aggravated felony provision applies to foreign offenses only if the sentence imposed for such a conviction was at least five ___________________(footnotes) 2 Although the court of appeals did not separately discuss petitioner's challenge to his Sentencing Guidelines calculation based on his prior conviction being treated as an aggravated felony, that claim was also foreclosed by Campbell, 94 F.3d at 127-128. ---------------------------------------- Page Break ---------------------------------------- 7 years' imprisonment. Pet. App. A4. The court of appeals stated that, "without any indication that Congress intended to apply the five year limitation to all of the listed crimes, it is clear that the five year term restriction applies only to crimes of violence." Ibid. (Citing United States v. Andrino-Carillo, 63 F.3d 922, 925 (9th Cir. 1995), cert. denied, 116 S. Ct. 746 (1996)). 3 Based on the above rulings, the court also rejected petitioner's challenge to the Sentencing Guidelines calculation for his failure to appear conviction under 18 U.S.C. 3146(a). Pursuant to Guidelines 2J1.6(b), his offense level for that case was increased because the underlying Section 1326 offense was punishable by 15 years' imprisonment due to his aggravated felony before deportation. Pet. App. A5. 4 ___________________(footnotes) 3 The court of appeals noted that the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103- 416, 222(a), 108 Stat. 4305, 4320-4322, "clarifies without a doubt that the five year term of imprisonment restriction applies only to crimes of violence," Pet. App. A4 n.2 (citing 8 U.S.C. 1101(a) (43) (A)-(F) (1994)), although the court declined to rely on that subsequent amendment as evidence of the congressional intent underlying the 1990 amendment. 4 In a concurring opinion (Pet. App. A5), Judge Michael stated that if he were not bound by the circuit precedent of Campbell, he would interpret the 1990 effective date provision of the amendment to 8 U.S.C. 1101(a) (43) to apply to predicate offenses, not the illegal entry offense of conviction, so that foreign convictions such as petitioner's that occurred before November 29, 1990 could not be used to enhance sentences under 8 U.S.C. 1326(b)(2). He stated that he would have, relied on the reasoning of United States v. Gomez-Rodriquez, 96 F.3d 1262 (9th Cir. 1996) (en banc). ---------------------------------------- Page Break ---------------------------------------- 8 ARGUMENT 1. Petitioner contends (Pet. 6-14) that his 1988 South African drug trafficking conviction was improperly used as an aggravated felony to enhance the maximum authorized sentence for his violation of 8 U.S.C. 1326, because that foreign conviction predated the November 29, 1990, effective date of the statutory amendment that added foreign convictions to the definition of aggravated felonies, 8 U.S.C. 1101(a) (43) , that was applicable at the time of his offense. Petitioner points out (Pet. 9-13) that there is disagreement among the circuits on the question, with the Ninth Circuit recently adopting the interpretation urged by petitioner, see United States v. Gomez-Rodriquez, 96 F.3d 1262 (9th Cir. 1996) (en banc), and the Fifth Circuit agreeing with the ruling below, see United States v. Garcia-Rico, 46 F.3d 8, 9- 10 (5th Cir.), cert. denied; 115 S. Ct. 2596 (1995). 5 a. The court of appeals properly rejected petitioner's argument. Before 1990, the definition of an "aggravated felony" in 8 U.S.C. 1101(a) (43) did not include foreign convictions. In 1990, however, Congress expanded the aggravated felony definition ___________________(footnotes) 5 Petitioner indicates (Pet. 10) that, at the time he filed his petition, a Petition for certiorari to the Fourth Circuit was pending in Campbell v. United States, No. 96-6825, seeking review of related issues involving the same effective date provision of the 1990 amendment to 8 U.S.C. 1101(a) (43); in the context of punishment enhancement under the Sentencing Guidelines. The Court denied that petition on May 27, 1997, 117 S. Ct. 1847; it also denied two petitions, arising out of the Fifth Circuit, that raised the same issue. See Morales-Lopez v. United States, No. 96-7640, cert. denied, 117 S. Ct. 1848 (May 27, 1997); Bermudez-Reyes v. United States, No. 96-6714, cert. denied, 117 S. Ct. 1258 (March 17, 1997) . ---------------------------------------- Page Break ---------------------------------------- 9 in Section 1101(a) (43) to include, among other things, offenses in violation of foreign law that would constitute aggravated felonies if committed in the United States, such as petitioner's 1988 South African drug trafficking conviction. Immigration Act of 1990 (1990 Act), Pub. L. No. 101-649, 501(a) (6), 104 Stat. 5048. Congress achieved that purpose by adding a second sentence to Section 1101(a) (43), after the first sentence which defines the term "aggravated felony," stating that "[s]uch term * * * applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years." Ibid. The relevant effective date section provided, in pertinent part, that the amendments to the definition "shall apply to offenses committed on or after the date of the enactment of this Act, "i.e. November 29, 1990. Id. at 501 (b), 104 Stat. 5048. The court below and the Fifth Circuit, interpreting the same effective date provision with respect to the 1990 addition of "crimes of violence" to the Section 1101(a) (43) definition of aggravated felony, have construed the term "offenses" in the effective date provision, correctly in our view, to refer to the offense of illegal reentry in violation of 8 U.S.C. 1326. Campbell, 94 F.3d at 127-128; United States v. Garcia-Rico, 46 F.3d 8, 9-10 (5th Cir.), cert. denied, 115 S. Ct. 2596 (1995). Under that interpretation of the effective date provision, the expanded definition of aggravated felony applies in the cases of all aliens, including petitioner, who committed the offense of ---------------------------------------- Page Break ---------------------------------------- 10 reentry after deportation in violation of Section 1326 on or after November 29, 1990, regardless of whether the prior felony conviction used as a predicate for enhanced punishment predated the statutory effective date. Moreover, in the context of the instant case involving a foreign conviction, the intent of Congress is even clearer. Congress specified that foreign convictions constitute aggravated felonies under Section 1101(a) (43) only if the term of imprisonment for that offense "was completed within the previous 15 years." 1990 Act, 501(a)(6), 104 Stat. 5048. Congress thereby appears to have envisioned the use of pre-existing foreign convictions as aggravated felonies for purposes such as sentencing enhancements so long as the offense was not too distant, based on the period of time since completion of the imprisonment term. And petitioner's interpretation is inconsistent with the ordinary meaning of that statutory provision. If Congress had intended that foreign offenses be treated as aggravated felonies only if they occur on or after November 29, 1990, there would have been little reason to include that 15-year limitation inasmuch as it would have had no limiting effect until at least 15 years hence. For all foreign offenses that occur on or after November 19, 1990, any term of imprisonment imposed will, necessarily, be completed after that date. Therefore, until at least the year 2005, in any case where an offense is committed after completion of a term of imprisonment for such a post-1990 foreign conviction, the term of ---------------------------------------- Page Break ---------------------------------------- 11 imprisonment for the foreign conviction will have been completed within the 15 years preceding the subsequent offense. Petitioner correctly points out (Pet. 9-13) that the Ninth Circuit has reached a contrary conclusion regarding the interpretation of the same effective date provision in the context of a case involving the sentencing of a defendant for a Section 1326 conviction who had a prior conviction for a crime of violence. In United States v. Gomez-Rodriquez, 96 F.3d 1262 (9th Cir. 1996) (en banc), it interpreted the term "offenses" in the 1990 amendment's effective date provision to refer to an alien's prior felony offense, rather than to the alien's Section 1326 reentry offense. Under that view, an offense that was added to the definition of aggravated felony in 1990 would be treated as such for sentencing purposes in a Section 1326 case only if that prior offense was itself committed on or after the amendment's November 29, 1990, effective date. Gomez-Rodriquez, 96 F.3d at 1264-1265. 6 The disagreement in the courts of appeals does not warrant review by this Court, however. The correct interpretation of the effective date provision of the 1990 amendment to 8 U.S.C. 1101(a) (43) is of diminishing significance in light of Congress's ___________________(footnotes) 6 Other cases on which petitioner relies (Pet. 11-13) contain dicta approving the same interpretation of the effective date provision of the 1990 amendment adopted in Gomez-Rodriquez, in the context of civil immigration proceedings, and in the context of a government concession for purposes of a particular case in which conflicting views of the courts of appeals were recognized, but the government did not ask the court of appeals to consider the issue. ---------------------------------------- Page Break ---------------------------------------- 12 subsequent amendment of Section 1101 (a) (43). In 1996, Congress amended the statutory definition of aggravated felony to state explicitly that the current statutory definition (which includes foreign offenses such as that committed by petitioner) will apply in the prosecution of all violations of 8 U.S.C. 1326 that occur on or after the date the amendment was enacted, i.e. September 30, 1996, without regard to the date of the prior conviction. See IIRIRA, 321, 110 Stat. 3009-628. Specifically, Section 321(b) of IIRIRA adds the following sentence to the text of 8 U.S.C 1101(a) (43): Notwithstanding any other provision of law (including any effective date) , the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph. IIRIRA, Section 321(b), 110 Stat. 3009-628. The effective date provision for that amendment, set forth in IIRIRA Section 321(c) , further provides: Effective Date The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred, and shall apply under Section 276(b) of the Immigration and Nationality Act [8 U.S.C. 1326(b)] only to violations of section 276(a) of such Act [8 U.S.C. 1326(a)] occurring on or after such date. IIRIRA, Section 321 (c), 110 Stat. 3009-628. Congress has thereby amended Section 1101(a) (43) to reject the Gomez-Rodriquez approach, thus rendering the issue petitioner raises irrelevant to all violations of Section 1326 occurring after September 30, 1996. b. Review by this Court is also not warranted because resolution of the question presented would have no direct impact ---------------------------------------- Page Break ---------------------------------------- 13 on the sentence imposed for the Section 1326 violation in this case. Even if petitioner's foreign conviction were not deemed to meet the statutory definition of "aggravated felony" for purposes of sentencing under 8 U.S.C. 1326(b) (2) , there is no doubt that it constituted a felony. Thus , under 8 U.S.C. 1326(b) (l), the court was authorized to impose up to 5 years' imprisonment. 7. Petitioner's sentence of 46 months' imprisonment on his Section 1326 offense did not exceed that maximum authorized sentence. 8 ___________________(footnotes) 7 See former 8 U.S.C. 1326(b) (1) (1988 & Supp. 11 1990) (providing 5-year maximum for alien "whose deportation was subsequent to a conviction for commission of a felony (other than an aggravated felony)"). When Congress amended Section 1326(b) in 1994 to increase to 20 years the maximum term of imprisonment authorized in cases involving aggravated felonies before deportation, see note 1, supra, it also increased to 10 years the maximum term of imprisonment authorized in cases involving nonaggravated felonies before deportation. 1994 Crime Act, 130001(b), 108 Stat. 2023. 8 Accordingly, the only direct consequence of treating petitioner's foreign conviction as an aggravated felony under 8 U.S.C. 1326(b) (2) was the effect it had on the sentence of 11 months' imprisonment imposed on petitioner's failure to appear conviction. Pursuant to Sentencing Guidelines 2J1.6(b) (2) (A), the offense level for calculation of petitioner's sentence on that conviction was increased three levels more than it would have been if his prior conviction had been treated as a nonaggravated felony under 8 U.S.C. 1326(b) (1). See Pet. 15; see also Sentencing Guidelines 2J1.6(b) (2) (A) (increasing offense level for failure to appear conviction by 9 levels based on fact that underlying offense is punishable by 15 years' imprisonment) , and 2J1.6 (b) (2) (B) (increasing offense level for failure to appear conviction by 6 levels based on fact that underlying offense is punishable by five years' imprisonment). Although petitioner presents this as a legal question for review by the Court (see Pet. i) distinct from the statutory interpretation question addressed, above, he does not suggest any additional ground justifying review by this Court (see id. at 15) and merely asserts that, if the Court were to reverse the court of appeals' statutory interpretation ruling, his sentence for failure to appear should be reconsidered (ibid.). ---------------------------------------- Page Break ---------------------------------------- 14 Although petitioner does not address this point, we also note that his Guidelines range for his Section 1326 offense was increased as a result of the application of Sentencing Guidelines 2L1.2(b) (2) , which provides for a 16-level increase in the offense level for such an offense where the defendant's deportation followed conviction for an aggravated felony. That increase in the offense level was not a direct result of the statutory interpretation, however. Application Note 7 of that Guidelines provision contains its own definition of "aggravated felony" and the Guidelines definition operates independently of the statutory definition of that term in 8 U.S.C. 1101(a) (43). See United States v. Munoz-Cerna, 47 F.3d 207, 209-212 (7th Cir. 1995) . In a case decided after the petition in this case was filed, however, the Ninth Circuit extended the reasoning of Gomez- Rodriquez to a case involving the application of the offense- level enhancement under Guidelines 2L1.2(b) (2). United States v. Fuentes-Barahona, 111 F.3d 651 (9th Cir. 1997). The Ninth Circuit in Fuentes-Barahona held that prior offenses that were not aggravated felonies under that court's interpretation of the statutory definition in 8 U.S.C. 1101(a) (43), because the offenses were committed before November 29, 1990, could likewise not support the Guidelines aggravated felony enhancement. Any conflict, between Fuentes-Barahona and the decision in the instant case does not warrant this Court's review. The Sentencing Commission is charged with "[periodically review[ing] ---------------------------------------- Page Break ---------------------------------------- 15 the work of the courts, and [making] whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest." Braxton v. United States, 500 U.S. 344, 348 (1991). Circuit conflicts regarding Guidelines interpretation are thus not ordinarily a reason to grant certiorari. Indeed, the Sentencing Commission has now proposed an amendment to Guidelines 2L1.2 that will resolve this issue in a manner consistent with the current statutory provision. Subject to review by Congress, the amended Guidelines provision will go into effect on November 1, 1997. 62 Fed. Reg. 26616, 26630 (1997) (amending Guidelines 2L1.2 to comport with the IIRIRA). In any event, it is our view that Fuentes-Barahona is incorrect. Fuentes-Barahona held that the citation to 8 U.S.C. 1101(43) in Application Note 7 to Guidelines 2L1.2 created an ambiguity as to whether the statutory effective date should apply to the Guideline as well, and that the question therefore should be resolved in the defendant's favor under the rule of lenity. 111 F.3d at 652-653. There is no foundation for the suggestion that the citation to Section 1101(a) (43) in Application Note 7 incorporates sub silentio the 1990 statutory effective-date provision into Guidelines 2L1.2 (b) (2). The cited codification of the statutory section does not contain the statutory effective date language. 2. Petitioner also contends (Pet. 14-15) that his prior drug trafficking conviction was improperly used as an aggravated felony to enhance his sentence under 8 U.S.C. 1326 because that ---------------------------------------- Page Break ---------------------------------------- 16 conviction did not result in a sentence of at least five years' imprisonment. He maintains that, in order to qualify as an aggravated felony, the offense must be listed in the definition of aggravated felony in 8 U.S.C. 1101(a) (43) and also must have yielded a sentence of at least five years' imprisonment. The evolution of Section 1101(a) (43) leaves no doubt that the court of appeals correctly rejected petitioner's argument. Before 1990, the definition of aggravated felony merely listed types of offenses without reference to any terms of imprisonment. See Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, 7342, 101 Stat. 4469-4470. When Congress expanded the definition in 1990 to cover additional offenses including, inter alia, money laundering and foreign convictions, it also added "any crime of violence * * * for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years." 1990 Act 501(a) (3), 104 Stat. 5048. We agree with the court of appeals' conclusion that, "without any indication that Congress intended to apply the five year limitation to all of the listed crimes, it is clear that the five year term restriction applies only to crimes of violence." Pet. App. A4. 9. That resolution of petitioner's claim by the court below is consistent with the decisions of the other courts of ___________________(footnotes) 9 That interpretation is consistent with the language of the related Sentencing Guidelines provision defining the term "aggravated felony." Sentencing Guidelines 2L1.2, Application Note 7. That Application Note places the restriction of five years imprisonment with the "crimes of violence" segment of the definition, and separates that listing from the other listed offenses by a semicolon rather than a comma. ---------------------------------------- Page Break ---------------------------------------- 17 appeals that have addressed the issue. See United States v. Andrino-Carillo, 63 F.3d 922, 925 (9th Cir. 1995) ("any illicit trafficking offense, regardless of the term of imprisonment imposed, qualifies as an aggravated felony") , cert. denied, 116 S. Ct. 746 (1996); United States v. Polanco, 47 F.3d 516, 518 (2d Cir. 1995) (five-year restriction applies only to crimes of violence, not to other categories of aggravated felonies). Moreover, in light of subsequent amendments to 8 U.S.C. 1101(a) (43) that have revised the statutory language at issue, the interpretation of the statutory language in effect at the time of petitioner's Section 1326 violation is of diminishing significance. First, as the court of appeals noted (Pet. App. A4 n.2) , in the Immigration and Nationality Technical Corrections Act of 1994, Pub.L. No. 103-416, 222(a), 108 Stat. 4320-4322, Congress made clear that the five year term of imprisonment restriction in Section 1101(a) (43) applies only to crimes of violence. See United States v. Andrino-Carillo, 63 F.3d at 925. Congress divided Section 1101(a) (43) into subsections referring to different types of offenses. Subsection 1101(a) (43) (B), as enacted in 1994, included drug trafficking (the prior felony at issue here) and made no reference to a minimum term of imprisonment. Subsection 1101(a) (43) (F), as enacted in 1994, applied only to crimes of violence, and did carry over the five- year restriction from the predecessor language. More recently, the changes effected in 1996 by IIRIRA have removed the five-year term of imprisonment restriction even from the "crimes of ---------------------------------------- Page Break ---------------------------------------- 18 violence" portion of the aggravated felony definition. The present version of 8 U.S.C. 1101(a) (43) (F) includes within the definition of an aggravated felony certain "crimes of violence" for which the term of imprisonment is at least one year. See IIRIRA 321(a)(3), 110 Stat. 3009-627. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General WILLIAM C. BROWN Attorney AUGUST 1997