IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
C. Docket No. 98-00540-1-CR-1-TWT
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Northern District of Georgia
Before BIRCH, FAY and
KRAVITCH, Circuit Judges.
Oscar Maldonado-Ramirez appeals his
sentence under 8 U.S.C. § 1326 for illegally entering the
United States after being deported.
The district court imposed a lengthy jail sentence
because it concluded that, under the U.S. Sentencing
Guidelines, Maldonado-Ramirez’s previous convictions for
aggravated assault and attempted burglary qualified as
“aggravated felonies” and required a sixteen-level
adjustment to the base offense level for violations of §
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)
“Aggravated felonies” include convictions for
crimes of theft and violence with sentences of at least a
year, see 8 U.S.C. § 1101(a)(43)(F)&(G), but
Maldonado-Ramirez argues that missing language in the
definition creates an ambiguity: the definition, he
contends, could refer to either sentences imposed
or sentences served.
Because another provision in the same section of
the statute clarifies that the phrase “term of
imprisonment” includes the full sentence initially
imposed, not just the time actually served in prison, see
8 U.S.C. § 1101(a)(48), we hold that the sentencing
provisions applied to Maldonado-Ramirez are unambiguous
and we affirm the adjustment to his offense level based on
his prior convictions.
As a condition of
Maldonado-Ramirez’s supervised release following
incarceration, the court also ordered him not to contest
his deportation. Maldonado-Ramirez
argues that the district court lacked the authority to
impose this restriction.
We agree with this contention and remand with
directions to remove that condition of the defendant’s
Maldonado-Ramirez has entered the
United States illegally at least five times.
He agreed to a “voluntary return” to his native
Mexico in 1984; he was deported in 1986, 1991, and 1993.
The 1986 deportation followed Maldonado-Ramirez’s
conviction in a Kansas Superior Court for attempted
burglary and aggravated assault. In those proceedings, the Kansas court imposed a one to five
year sentence for the attempted burglary count and three
to ten years for aggravated assault.
Maldonado-Ramirez served seven months in prison,
but the court suspended the rest of the sentence when
Maldonado-Ramirez was deported.
On November 12, 1998,
Maldonado-Ramirez presented himself at the INS’s Atlanta
office and acknowledged that he was once again in the
United States illegally.
After a bench trial, the district court found
beyond a reasonable doubt that Maldonado-Ramirez was an
alien who previously had been deported, and that in
violation of § 1326 he had reentered the United States
without obtaining the Attorney General’s permission.
When calculating sentences for violations of § 1326, the base
offense level is eight.
See U.S. Sentencing Guidelines Manual §
court granted the defendant a two-level downward
adjustment for acceptance of responsibility, see id.
§ 3E1.1(a), but added a sixteen-level increase because it
concluded that Maldonado-Ramirez previously had been
deported following conviction for an aggravated felony, see
id. § 2L1.2(b)(1)(A).
Given the defendant’s criminal history, the
resulting sentencing range was 51-63 months.
The court imposed the maximum permissible prison
term as well as three years of supervised release.
The court attached numerous conditions to the
supervised release, including that Maldonado-Ramirez be
turned over to immigration authorities and that he not
seek relief from removal proceedings.
Section 2L1.2(b)(1)(A) of the
Sentencing Guidelines increases the range of permissible
sentences for unlawfully entering the United States if a
defendant previously had been deported after being
convicted of an aggravated felony.
Application Note One for this provision of the
Sentencing Guidelines adopts the definition of
“aggravated felony” provided at 8 U.S.C. §
definition includes “a crime of violence . . . for which
the term of imprisonment [sic] at least one year,” and
“a theft offense . . . or burglary offense for which the
term of imprisonment [sic] at least one year.”
8 U.S.C. §§ 1101(a)(43)(F)&(G).
Maldonado-Ramirez points out that
these definitions include no verb and may be missing other
words as well. According
to Maldonado-Ramirez, the missing language creates an
could have intended to include any crime of violence or
theft “for which the term of imprisonment” imposed
is “at least one year,” or it could have intended to
include only crimes “for which the term of
imprisonment” served is “at least one year.”
Because Maldonado-Ramirez received multi-year
sentences for his aggravated assault and attempted
burglary convictions but served only seven months before
being deported, the difference is critical.
Maldonado-Ramirez argues that the rule of lenity
requires us to resolve the ambiguity in the criminal
The rule of lenity, however, is not
a doctrine of first resort whenever a criminal defendant
identifies a potential ambiguity in a statute, and the
rule “is not invoked by a grammatical possibility.”
Caron v. United States, 524 U.S. 308, 316,
118 S. Ct. 2007, 2012 (1998). Instead, the rule of lenity applies only when “the
traditional canons of statutory construction” fail to
resolve an ambiguity.
United States v. Shabani, 513 U.S. 10, 17,
115 S. Ct. 382, 386 (1994).
In this case, a more comprehensive review of §
1101(a) removes any uncertainty caused by the
typographical error in the subsections concerning crimes
of violence and burglary.
Section 1101(a)(48)(B) states that
“[a]ny reference to a term of imprisonment
. . . is deemed to include the period of the
incarceration or confinement ordered by a court of law
regardless of any suspension of the imposition or
execution of that imprisonment . . . in whole or in
definition applies to all of chapter twelve of the United
States Code, including § 1101(a)(43).
See United States v. Tejeda-Perez,
199 F.3d 981, 982 (8th Cir. 1999) (applying definition of
“term of imprisonment” in § 1101(a)(48) to clarify §
1101(a)(43) for purposes of the Sentencing Guidelines’
“aggravated felony” offense level enhancement); United
States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir.
1999) (same); United States v. Graham, 169 F.3d
787, 790 (3d Cir.), cert. denied, 120 S. Ct. 116
(1999) (same); see also United States v.
McKenzie, 193 F.3d 740, 742 (3d Cir. 1999) (applying
definition of “term of imprisonment” in § 1101(a)(48)
to U.S. Sentencing Guideline § 2L1.2 app. n.5, which
provides a downward departure if “the term of
imprisonment imposed” for an aggravated felony “did
not exceed one year”); United States v.
Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.
1999) (same). Section
1101(a)(48)(B) makes clear that even though
Maldonado-Ramirez’s deportation cut short his
incarceration in 1986, his convictions still qualify as
“aggravated felonies” as defined in § 1101(a)(43)
because of the lengthier sentence initially imposed by the
Maldonado-Ramirez is not convinced
that § 1101(a)(48)’s term of imprisonment definition
resolves the ambiguity in §§ 1101(a)(43)(F)&(G)
because it does not fill in the missing language.
Instead, it simply informs the meaning of terms
already included in the definition of crimes of violence
and theft. The
missing words, according to Maldonado-Ramirez, could give
the phrase “term of imprisonment” a distinctive
meaning, rendering § 1101(a)(48) inapplicable.
Maldonado-Ramirez points out that the definitions
of some other offenses in § 1101(a)(43) make
reference to sentences and terms of imprisonment in a
different way than § 1101(a)(48).
Those offenses only qualify as aggravated felonies
if the permissible sentence or term of imprisonment
is sufficiently severe.
See 8 U.S.C. §§ 1101(a)(43)(J), (Q), &
If anything, however, the fact that
some portions of § 1101(a)(43) explicitly refer to
punishments permitted by law reassures us that Congress
did use the “term of imprisonment” language in a
specialized way uninformed by § 1101(a)(48) when it so
Maldonado-Ramirez’ argument is entirely speculative.
The question is not whether additional words would
change a statute’s meaning, but whether a statute has
meaning as written. Congress,
after all, could change the import of any law by inserting
As they appear now in the United States Code, the
definitions of theft offenses and violent offenses that
qualify as aggravated felonies may be inartful or even
grammatically incorrect, but with reference to § 1101(a)(48)
they are not ambiguous or devoid of meaning.
The case law from other circuits is
consistent with our conclusion that the length of the
sentence imposed determines whether crimes of theft or
violence constitute aggravated felonies.
The Fifth and Third Circuits have rejected the
argument that the missing verb in §§ 1101(a)(43)(F)&(G)
renders the statutory provisions ambiguous or vague.
See Banda-Zamora, 178 F.3d at 729; Graham,
169 F.3d at 789-91. Without commenting on the possible ambiguity created by the
missing verb in §§ 1101(a)(43)(G), the Eighth Circuit
also held that a conviction with a sentence of at least
one year, even though suspended, qualifies as an
aggravated felony for the purposes of the statute and
Sentencing Guideline § 2L1.2(b)(1)(A).
See Tejeda-Perez, 199 F.3d at 982-83.
The legislative history also
supports the view that in §§ 1101(a)(43)(F)&(G)
the length of the sentence imposed, rather than served,
determines whether an offense qualifies as an aggravated
1996, §§ 1101(a)(43)(F)&(G) categorized as
aggravated felonies all offenses of theft or violence
“for which the term of imprisonment imposed (regardless
of any suspension of such imprisonment) is at least five
U.S.C. §§ 1101(a)(43)(F)&(G) (1995).
As part of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”),
Congress lowered the minimum length of qualifying
sentences from five years to one year.
See Pub. L. No. 104-208, Div. C, §
321(a)(3), 110 Stat. 3009, 3009-627 (1996). Congress also struck the “imposed (regardless of any
suspension of imprisonment)” language wherever it
appeared throughout § 1101 and created the new §
1101(a)(48)(B), which provided a global definition of
“term of imprisonment” and “sentence” applicable
to all of § 1101 and all of the U.S. Code’s immigration
id. § 322(a), 110 Stat. at 3009-628 to -629. In short, Congress stiffened the definition of aggravated
felonies and attempted to organize the definitions in §
1101 more methodically.
In the process, Congress inadvertently edited the
verb out of §§ 1101(a)(43)(F)&(G).
Nothing in the statutory revisions, however,
indicates that Congress meant to define the crimes of
theft and violence qualifying as aggravated felonies in
terms of anything other than the prison sentence initially
imposed by the court.
House and Senate Committee Reports confirm that
lowering the minimum jail sentence was the sole
substantive change to §§ 1101(a)(43)(F)&(G)
that Congress intended in 1996.
See H.R. Conf. Rep. No. 104-828, at 223-24
(1996); S. Rep. No. 104-249, at 17 (1996).
When the district court sentenced
Maldonado-Ramirez, it ordered that he not “seek relief
from removal proceedings.” Maldonado-Ramirez
argues that the court lacked the authority to impose such
a restriction. The government agrees, and so do we.
The IIRIRA provides that a hearing
before an Immigration Judge is the exclusive procedure for
determining whether an alien should be deported from the
United States. See Pub. L. No. 104-208, Div. C, § 304(a)(3), 110
Stat. 3009-3009-589 (1996) (codified at 8 U.S.C. §
statute also grants aliens a number of rights during
removal hearings, including representation by counsel, the
opportunity to present evidence, and the opportunity to
examine the government’s evidence and to cross-examine
See 8 U.S.C. § 1229(b)(4).
This circuit has held that the IIRIRA divests the
federal courts of jurisdiction to order deportation
United States v. Romeo, 122 F.3d 941, 943 (11th
Although the district court did not
literally order Maldonado-Ramirez deported, preventing him
from raising a defense or challenging the government’s
case during a removal hearing would have much the same
effect, circumventing both the IIRIRA and our holding in Romeo.
We therefore remand for the district court to
modify the sentence by eliminating the restriction on
Maldonado-Ramirez’s ability to seek relief from
this action will operate in the defendant’s favor, the
district court will not need to conduct a new sentencing
United States v. Giraldo-Prado, 150 F.3d 1328, 1330
(11th Cir. 1998).
AFFIRM the defendant’s sentence based on his prior
conviction for an aggravated felony.
We VACATE the portion of the sentence restricting the
defendant’s ability to seek relief from removal
proceedings, and we REMAND for the district court to modify
the defendant’s sentence accordingly.
to subsection (b) of this section, any alien who–
has been denied admission, excluded, deported, or
removed . . . and thereafter
enters, attempts to enter, or is at any time found in,
the United States, unless
prior to his reembarkation at a place outside the United
States or his application for admission the foreign
contiguous territory, the Attorney General has expressly
consented to such alien’s reapplying for admission . .
be fined under Title 18, or imprisoned not more than 2
years, or both.
U.S.C. § 1326 (1998).
The Sentencing Guidelines respond to 8 U.S.C. §
1326(b)(2), which heightens the penalty for illegally
reentering the United States for any alien “whose
removal was subsequent to a conviction for commission of
an aggravated felony.”