[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 05, 2001
No. 00-13456 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-00003-CR-01-WCO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERONIMO AYALA-GOMEZ,
a.k.a. Momo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 5, 2001)
Before CARNES, COX and NOONAN*, Circuit Judges.
_______________________
*Honorable John T. Noonan, Jr., U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
PER CURIAM:
Geronimo Ayala-Gomez appeals his sentence for being found in the United
States without permission after removal, in violation of 8 U.S.C. § 1326. The
principle issue is whether the district court properly imposed an enhanced sentence
because Ayala committed an “aggravated felony,” as that term is used in U.S.S.G. §
2L1.2(b)(1)(A) and 8 U.S.C. § 1101(43), before his removal from the United States.
What aggravated felony means in § 2L1.2(b)(1)(A) is a question subject to de novo
review. United States v. Drummond, 240 F.3d 1333, 1334 (11th Cir. 2001). We
affirm.
Ayala was convicted in a superior court in Hall County, Georgia of first-degree
forgery and entering an automobile with intent to commit theft. The superior court
sentenced him for each offense to time served (eight months), to be followed by four
years and four months’ probation, but it imposed a nominal five-year term of
imprisonment, too1:
WHEREUPON, it is ordered and adjudged by the Court that: The said
defendant is hereby sentenced to confinement for a period of 5 years and
0 months in the State Penal System or such other institution as the
Commissioner of the State Department of Offender Rehabilitation may
direct, to be computed as provided by law, HOWEVER, it is further
ordered by the Court,
1
We cannot locate the superior court judgment in the record, but the sentencing
transcript shows that it was introduced as Government Exhibit 1. We rely on the copy appended
to Ayala’s supplemental brief.
2
THAT upon service of 0 years and 8 months of the above sentence, the
remainder of 4 years and 4 months may be served on probation
PROVIDED that the said defendant complies with the following general
and special conditions herein imposed by the Court as a part of this
sentence.
A handwritten notation followed: “Credit for time served — all incarceration time
served prior to sentencing.” Following these convictions, Ayala was deported to
Mexico. He came back to Georgia the following year, where local police familiar
with him spotted him on his way to visit his mother in Gainesville. He pleaded guilty
to violating 8 U.S.C. § 1326, which prohibits being found in the U.S., without the
attorney general’s permission, after deportation following commission of an
aggravated felony.2
The default Sentencing Guidelines offense level for § 1326 is level 8. U.S.S.G.
§ 2L1.2(a). But if the removal follows conviction for an aggravated felony, then the
base offense level is 24. Id. § 2L1.2(b)(1)(A). The Guidelines explicitly incorporate
the definition of “aggravated felony” found in 8 U.S.C. § 1101(43). That section
identifies forgery and “theft offenses” as aggravated felonies, but only if the
convictions resulted in the imposition of a “term of imprisonment” of at least one year.
8 U.S.C. § 1101(43)(G), (R), (P); United States v. Guzman-Bera, 216 F.3d 1019, 1020
2
Ayala’s indictment alleges not only that he had been found back in the U.S.
without the attorney general’s permission, but also that he committed an aggravated felony
before he left. Ayala’s guilty plea could arguably constitute a concession of the issue presented
in this appeal. But the Government does not so assert, and we do not address that question.
3
(11th Cir. 2000). The term of imprisonment imposed, 8 U.S.C. § 1101(48)(B) tells us,
for these purposes “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.” Over Ayala’s objection, the
district court agreed with the presentence report that the Hall County term of
imprisonment was five years, because the four years four months’ probation was a
“suspension” that § 1101(48)(B) requires us to include in the term of imprisonment.
The court accordingly determined that Ayala’s forgery and entering-an-auto offenses
were aggravated felonies and started with a base offense level of 24.
In this appeal of that ruling, Ayala does not dispute that forgery and entering
an auto fit into the categories of offenses described in § 1101(43)(G) or (R). But he
does dispute the second requirement for an aggravated felony, which is that the Hall
County court imposed a term of imprisonment greater than one year. Ayala points
out that the actual sentence of imprisonment was only eight months. Even if we read
the sentence through § 1101(48)(B)’s lens, he continues, the sentence was still eight
months, because § 1101(48)(B) deems only suspended parts of the sentence to count
as imprisonment; the Hall County court probated all but eight months of Ayala’s
sentence. And, he concludes, § 1101(48)(B) does not merge probation into the term
of imprisonment. United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999)
4
(directly imposed sentence of probation, as opposed to one substituted for an imposed
prison term, does not count toward the aggravated felony term of imprisonment). The
Government counters that the effect of the superior court sentence here is identical to
the effect of a suspended sentence, and that Ayala’s distinction between suspension
and probation is therefore illusory.
Both arguments have some force because suspension is not defined in §
1101(48)(B), and it means different things to different courts. In the pre-Guidelines
federal system, as the Government points out, suspension of a sentence was simply
a procedural step on the way to excusing a defendant from a prison term and allowing
him to serve his sentence on probation. See 18 U.S.C. § 3651 (1982) (a court in many
circumstances “may suspend the imposition or execution of sentence and place the
defendant on probation for such period and upon such terms and conditions as the
court deems best”), repealed by Sentencing Reform Act of 1984, Pub. L. No. 98-473,
§ 212(a)(2), 98 Stat. 1945, 1987. The federal system does not appear to have ever had
a provision permitting a judge simply to suspend a sentence without imposing
probation, even though it did (and does) permit a sentence of nothing but probation
in certain circumstances. See id.; 18 U.S.C. § 3561 (1994).
In Georgia, by contrast, suspension and probation are twin animals, similar but
distinct. Both are mechanisms by which a sentencing court may excuse a defendant
5
from prison time. See O.C.G.A. § 17-10-1(a)(1) (Lexis Supp. 2000) (“The judge
imposing the sentence is granted power and authority to suspend or probate all or any
part of the entire sentence . . . .”) Both may be directly imposed subject to conditions
whose violation may result in incarceration. See id. § 17-10-1(c) (permitting the
court, for instance, to require completion of high school diploma equivalent as
condition of suspension); O.C.G.A. § 42-8-34.1 (Michie 1997) (procedures for
revocation of “probated or suspended sentence”). But suspended and probated
sentences are administered differently; a probation officer monitors compliance with
probation conditions, while the sentencing court is responsible for enforcing
conditions of suspension. Williams v. State, 381 S.E.2d 399, 400 (Ga. Ct. App. 1989).
And under Georgia law, a suspended sentence is not subject to the panoply of rules
surrounding probation. See O.C.G.A. § 42-8-39 (Michie 1997) (“In all criminal cases
. . . in which the trial judge after imposing sentence further provides that the execution
of the sentence shall be suspended, such provision shall not have the effect of placing
the defendant on probation as provided in this article [about probation].”).
The core inquiry, therefore, is whether suspension in § 1101(48)(B) is limited
to its federal meaning of the step intervening between imposition of a prison term and
placing a defendant on probation, or imports the Georgia-law use of suspension to
mean a distinct kind of extramural supervision. If we use the federal understanding
6
of the term, Ayala’s sentence was suspended even though the Hall County court did
not use the word, because to the federal mind suspension is a necessary procedural
step in excusing part of a term of imprisonment in favor of probationary supervision.
On the other hand, if we opt for the Georgia understanding, then we must conclude
that all but eight months of Ayala’s sentence was probated rather than suspended, and
that under § 1101(48)(B) his term of imprisonment was less than a year.
Both the ordinary starting point of statutory construction and the typical second
step fail us here. The word “suspension” alone gives us no clues as to which meaning
it carries, and no explanatory legislative history has accompanied the addition or the
refinement of the prison-term test found in the definition of aggravated felony. See
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-
208, div. C, §§ 321(a)(3), (10) and 322(a)(1), 110 Stat. 3009-546, 3009-627 to -628
(amending aggravated-felony tests for theft and forgery offenses to provide one-year
prison-term test and adding definition of term of imprisonment that includes
suspended sentences); Immigration and Nationality Technical Corrections Act of
1994, Pub. L. 103-416, § 222(a), 108 Stat. 4305, 4321 (making theft offenses
aggravated felonies if “the term of imprisonment imposed (regardless of any
suspension of imprisonment) is at least 5 years”).
7
There is, however, a fallback principle for resolving statutory-interpretation
dilemmas like this one. Words in federal statutes reflect federal understandings,
absent an explicit statement to the contrary, even if a state uses the word differently.
See Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12, 103 S. Ct. 986, 991
(1983) (citing desirability of national uniformity in justifying applying federal
meaning of “conviction” in a gun-licensing statute); United States v. Mejias, 47 F.3d
401, 403-04 (11th Cir. 1995) (federal law deems judgment based on nolo contendere
plea to be “conviction” under 21 U.S.C. § 841(b)(1)(B), even if Florida law does not
consider a nolo plea to entail conviction). Congress has not directed us to look to the
law of the jurisdiction of conviction to determine what suspension means. This
federal-meaning-prevails principle of statutory construction accordingly requires that
suspension take its federal meaning: a procedural act that precedes a court’s
authorization for a defendant to spend part or all of the imposed prison sentence
outside of prison. Under that definition, § 1101(48)(B) deems the term of
imprisonment described in § 1101(43) to include all parts of a sentence of
imprisonment from which the sentencing court excuses the defendant, even if the
court itself follows state-law usage and describes the excuse with a word other than
“suspend.”
8
As it turns out, this principle of statutory interpretation yields a reasonable rule,
given the most likely reason that Congress pegged the definition of aggravated felony
to the term of imprisonment formally imposed, rather than the period the court
actually ordered the defendant to serve. In the pre-Guidelines federal system, as well
is in Georgia’s present system, the term of imprisonment imposed has a real meaning
as the ceiling (in most circumstances) of the time a defendant can spend in prison if
he violates a condition of his suspension or probation. See 18 U.S.C. § 3653 (1982)
(“the court may revoke the probation and require [the defendant] to serve the sentence
imposed, or any lesser sentence”; O.C.G.A. § 42-8-34.1(b), (c) (similar). As the
maximum time during which the defendant may be punished with incarceration, the
term of imprisonment is thus a reasonable measure of the severity of the offense,
whatever mechanism the court uses in conditionally excusing the defendant from
some incarceration.
We accordingly hold that the terms of imprisonment imposed on Ayala include
the parts of Ayala’s sentence that the Hall County court probated under Georgia law.
Those terms of imprisonment were thus five years each, well above the one-year floor,
and the district court correctly determined that the offenses were aggravated felonies.
The court thus properly assessed Ayala’s base offense level at 24 and reached the
proper guidelines range.
9
Ayala’s sentence is accordingly affirmed.
AFFIRMED.
10
NOONAN, Circuit Judge, dissenting:
As the opinion of the court observes, Ayala-Gomez was actually sentenced to
eight months’ imprisonment, a term coinciding with the time he had already been in
custody. Georgia did not treat his crime as deserving another four years and four
months in jail. Ayala-Gomez was put on probation and deported. For a federal court
to hold now that Ayala-Gomez had committed an aggravated felony in Georgia for
which Georgia imposed a term of imprisonment of five years is to put a federal spin
on a matter left to the States as well as to be draconian in a criminal case where
venerable precedent tells us it is better to be mild.
The court correctly begins with U.S.S.G. § 2L1.2(b)(1)(A), which incorporates
the definition of “aggravated felony” found in 8 U.S.C. § 1101(a)(43). The statute is
in fact dispositive. The court is also correct that in a federal statute, federal law
controls the meaning of the terms used unless Congress specifies otherwise.
Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12 (1983); United States v.
Mejias, 47 F.3d 401, 403-04 (11th Cir. 1995). Here, the relevant statute, 8 U.S.C. §
1101(a)(43) defines “aggravated felony” and states: “The term applies to an offense
described in this paragraph whether in violation of Federal or State law . . . .” The
statute thus announces an intention to let the various laws of the fifty States determine
what is sufficiently serious a crime to justify enhanced federal punishment. Under this
11
language it is Ayala-Gomez’s conviction of forgery under the law of Georgia that
makes him a candidate for the increased federal sanction. As the crime was a state
crime, so too it must be state law that determines whether the term of imprisonment
imposed was for “at least one year.” The term of imprisonment follows upon the state
conviction. To say that Congress wanted a federal meaning for “term of
imprisonment” when the term of imprisonment was attached to a state crime is to
create a strange beast or chimera. It is also to fail to do justice to a statutory scheme
which, in great detail, specifies federal crimes when they are meant, state crimes when
they are included, and evinces an intent to respect state determinations when adding
a federal sanction to a state conviction.
The reference to the law of a State in § 1101(a)(43) is as distinct, although not
as complete, as the statutory reference to state law in 18 U.S.C. § 921(a)(20). United
States v. Willis, 106 F.3d 966, 967 (11th Cir. 1997). That local variation by
jurisdiction is intended has been made indisputable by the interpretation given by the
circuits, including this one, to the statutory phrase “term of imprisonment.” Does the
phrase mean the sentence authorized by the law or the sentence actually imposed by
the sentencing court? The answer has been unanimous. It means the sentence actually
imposed. United States v. Maldonado-Ramirez, 216 F.3d 940, 943 (11th Cir. 2000);
United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000); United States
12
v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999); United States v. Graham, 169
F.3d 787, 790-91 (3d Cir.), cert. denied, 528 U.S. 845 (1999). As sentencing
decisions will vary from trial judge to trial judge, especially in States without
sentencing guidelines, there can be no question that Congress did not impose a
uniform federal standard but sought to adjust the federal enhancement to the gravity
of the sentence actually imposed by whatever trial judge had heard the prior criminal
case.
The opinion of the court says that the ordinary canons of interpretation fail us.
My reading of the statute is that it is clear: it defers, as to the definition here, to the
States. But if I am wrong as to the clarity, and the meaning favored by the court is
there, the statute is at the very least ambiguous. When a statute is ambiguous, there
is a canon of impeccable authority: the rule of lenity. United States v. Trout, 68 F.3d
1276, 1280 (11th Cir. 1995). Not out of a sentimental sympathy for criminals, but out
of a desire to ensure every individual that the power of the government will be used
only to enforce clearly prescribed norms, criminal statutes are read with a requirement
that both the crime and its penalty be plainly defined and if “the issue is subject to
some doubt,” the doubts “are resolved in favor of the defendant.” Adamo Wrecking
Co. v. United States, 434 U.S. 275, 284-85 (1978).
I respectfully dissent.
13
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