United States v. Geronimo Ayala-Gomez ( 2001 )


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  •                                                                                    [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
    14