dissenting:
I respectfully part company with the majority’s holding that 18 U.S.C. § 510 is unambiguous, allowing aggregation of checks from separate, distinct offenses to determine the applicability of the statute’s leniency provision. I would hold that it is possible, and perhaps even mandatory, to read the statute as only permitting aggregation of checks within each offense. Because of the ambiguity in the statute, I would reverse under Dowling v. United States, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985) and Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).
Turning first to the statute itself, the critical language is: “[i]f the face value of the ... [check] or the aggregate face value ... in any of the above-mentioned offenses ... does not exceed $500.” The majority interprets this language to authorize the aggregation of checks from separate and distinct offenses. Nowhere does the statute instruct the state to aggregate the checks involved in all the offenses committed under the statute, nor does the statute require aggregation of all checks listed in one indictment.
I believe it is possible to find that Congress intended for the state to aggregate the checks involved in each individual offense. The facts in this case indicate that Taylor committed three distinct offenses, each of which involved only one check with a value less than $500. See United States v. White, 524 F.2d 1249 (5th Cir.1975). I would, therefore, hold that, under at least one interpretation of the statute, the aggregation provision would not apply in the instant case.
Although the majority distinguishes United States v. Billingslea, 603 F.2d 515 (5th Cir.1979), I believe that we should follow Billingslea. As the majority noted, the statute in Billingslea contained a leniency provision, allowing a lesser term if “the amount so embezzled, misapplied, stolen, or obtained by fraud [did] not exceed $100.” Id. at 517-18 (quoting 18 U.S.C. § 665). The Billingslea statute did not specifically mention aggregation, however, the language of the statute indicates that Congress permitted aggregation. The statute refers to “the amount embezzled, misapplied, stolen or obtained by fraud.” 18 U.S.C. § 665. The statute does not refer to the value of each item taken. Rather, it suggests that the value of all the items involved can be added together to determine “the amount” illegally taken. The defendant in Billingslea had taken Comprehensive Employment Training Act (CETA) checks from students and deposited them into his own accounts. The state *817aggregated the checks from several offenses in order to escape the leniency provision. On appeal, this court concluded that “[s]ince ... each misappropriation was a separate offense ..., it was improper to allow the government to aggregate the offenses in order to reach the dollar amount required to sustain a felony.” Id. at 520. The Billingslea prohibition on aggregation among offenses calls into question the majority’s interpretation of the statute and creates an ambiguity that I believe requires a reversal.
Furthermore, as a matter of public policy, I find it difficult to believe that Congress intended that checks from distinct offenses occurring at different times and places could be aggregated. Under the majority’s holding, a defendant who forged a $251 check this month, waited a year and forged another check of equal value, would be deprived of the leniency provision.
For the above reasons, I DISSENT.