dissenting:
The defendant was convicted of common law assault in Maryland and sentenced to 18 months’ imprisonment. Because his actual sentence was less than two years, in my opinion, the common law assault conviction should not be a violent felony conviction for purposes of 18 U.S.C. § 924(e).
I first observe that Schultheis and Hassan El are not inconsistent. In Schultheis, the government attempted to classify the defendant’s common law assault conviction as a felony. 486 F.2d at 1331. Although the sentence for the defendant’s common law assault could have been greater than two years, he was actually sentenced to a suspended 90-day sentence and fined $25.00. We held that because the sentence imposed was less than two years, it was not a felony conviction. 486 F.2d at 1335.
Similarly, in Hassan El, this court determined that the actual sentence imposed was determinative. 5 F.3d at 732. The defendant in that case had a common law assault conviction in which he had received a three-year sentence, which was suspended, however. The defendant argued that the conviction should not be considered as a felony because the actual time spent in prison was less than two years. Regardless of the amount of time he spent in prison, we held that the conviction was a felony because the sentence imposed was greater than two years. 5 F.3d at 733.
Obscure in the majority opinion is the real issue presently before the court, and that is that change of an authoritative construction of a statute by a court should almost always be accomplished by Congress rather than by a court. In cases of statutory interpretation, stare decisis should have special weight. See Hohn v. United States, -U.S.-,-, 118 S.Ct. 1969, 1977, 141 L.Ed.2d 242 (1998).
In Schultheis, we were construing 18 U.S.C.App. § 1202(c)(2) which provided that
“felony” means any offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less. *205The term “crime punishable by imprisonment for a term exceeding one year” does not include ... any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
*204The statute we are concerned with here is 18 U.S.C. § 921(a)(20)(B), a recodification of § 1202(c)(2)* which states
*205So the operative parts of the two statutes are the same, letter for letter, in haec verba.
Construing that same language in Schul-theis, we held that “the seriousness of the crime as evidenced by the actual sentence imposed should control whether or not a conviction for such a crime should be classed as a ‘felony’ for the purposes of’ the application of § 1202(c)(2). We next held in Hassan El that a three-year probationary sentence was, in fact, not imprisonment of two years or less, Hassan El having “in fact, received a sentence of over two years’ imprisonment, although his three-year sentence was indeed then suspended.” 5 F.3d at 733.
Schultheis has been the law in this circuit for nearly 25 years. An examination by Coleman’s attorney of Fourth Circuit law in this case, doubtless showed him that the 18-month sentence placed Coleman within the exception of § 921(a)(20)(B), just as Schul-theis’ 90-day sentence placed him within that same exception. And an examination of Hassan El would not have turned out differently. If attorneys and the public cannot depend on a construction of exactly the same statutory language by a Court of Appeals, what can they depend on?
The government here takes the same position that we rejected 25 years ago in Schultheis. As we stated there, “[i]t [the government] would blindly lump into the same category the most trivial and the most heinous assaults, thereby defeating the clear Congressional desire to exclude minor transgressions of the law from the sweep of Title 18 U.S.C.App. § 1202(c)(2) [now 18 U.S.C. § 921(a)(20)(B) ].” 486 F.2d at 1333.
I would vacate the sentence and require resentencing.
Judge Murnaghan joins in this opinion.
The same act of Congress that repealed 18 U.S.C.App. § 1202(c)(2) also adopted the language of the same in 18 U.S.C. § 921(a)(20)(B). 100 Stat. 449 (1986).