IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
D. C. Docket No. 98-00565-CR-ASG
Appeal from the United States District Court
for the Southern District of Florida
(June 27, 2000)
pled guilty to illegally reentering the United
States after deportation
in violation of 18 U.S.C. § 1326 (a) and (b)(2),
and received a 77-month prison term.
He appeals the imposition of a sixteen-level
enhancement to his base offense level under U.S.S.G. §
2L1.2(b)(1)(A). That enhancement applies when a defendant
reenters the United States after being previously deported
after a criminal conviction for an “aggravated
vacate and remand, holding that when a defendant has
simply been placed on
probation and has not been sentenced to a prison
term at the time of deportation and reentry, the
“aggravated felony” enhancement does not apply.
Guzman-Bera had been deported twice.
The first time he was deported after being
convicted for cocaine possession in 1991.
Thereafter, he re-entered the United States without
permission and in August 1995 was arrested for grand
theft, third degree.
A Florida state court found him guilty and
sentenced him to five years of probation.
This is the offense at the time of deportation and
reentry that the district court defined as an aggravated
In December 1995,
the Immigration and Naturalization Service again deported
the United States again without permission and,
in 1998, was arrested and convicted on several
counts of grand theft.
The State of Florida then charged Guzman-Bera with
violating his probation for the 1995 theft conviction,
revoked his probation, and sentenced him to 18 months.
The issue is whether
that Florida conviction, coupled with the 18-months prison
sentence for probation violation after deportation and
after reentry, qualified as an aggravated felony at the
time of his deportation and at the time of his reentry.
An “aggravated felony” under the statute is
defined in terms of the sentence, not the criminal acts
involved in the conviction, nor in terms of the conviction
define the term aggravated felony for the purposes of §2L1.2,
the section’s commentary points to 8 U.S.C. §
1101(a)(43), which states that an aggravated felony
includes “a theft offense ... for which the term of
imprisonment [sic] at least one year.” 8 U.S.C. §
statute omits crucial language in the text, making it
arguable as to whether it refers to the authorized
term of imprisonment, even if not imposed, or the term of
imprisonment actually imposed.
We follow the Third
Circuit Court of Appeals in United States v.
Graham, 169 F.3d 787 (3rd Cir.), cert. denied,
_U.S. _, 120 S.Ct. 116 (1999) in holding that the statute
means the sentence actually imposed. The Third Circuit is the only
United States Court of Appeals found to have
directly decided whether 8 U.S.C. § 1101(a)(43)(G) refers
to the sentence authorized or the sentence imposed.
The Court reasoned that, although a crucial verb
was omitted, there was no evidence that Congress intended
to depart from its prior position that an aggravated
felony is determined by the imposed imprisonment. Graham, 169 F.3d at 790.
Before its amendment in 1996, the statute defined
aggravated felony as “a theft offense ...for which the
term of imprisonment imposed (regardless of any suspension
of such imprisonment) is at least five years.” Graham,
169 F.3d at 790.
The court concluded that when Congress amended the
statute it did not intend to change the sentence
imposition requirement, but, instead, simply lowered the
penalty required to make a theft violation an aggravated
felony from five years to one year. 169 F.3d at 791.
We agree with the Third Circuit’s reading of §1101(a)(43)(G)
and its reasoning and hold that an aggravated felony is
defined by the sentence actually imposed.
The question then
sentence was actually imposed in this case?
The district court considered the sentence imposed
to be the 18-month sentence Guzman-Bera received in 1998
based on his probation violation because it “has a
direct relationship to” the original sentence he
received in 1995. At
the time of his deportation and reentry, however, the
conviction was not one for which a prison sentence had
been imposed. If
he had received a prison sentence which was suspended and
followed by probation the enhancement might be applicable.
A reference to a term of imprisonment is deemed to
include the period of incarceration regardless of any
suspension of either the imposition or execution of that
sentence. 8 U.S.C. § 1101(a)(48)(B).
See also United States v. Tejeda-Perez,
199 F.3d 981,982 (8th Cir. 1999)(“A conviction is an
aggravated felony within the meaning of §2L1.2 if the
defendant receives a sentence of at least one year, even
if the sentence is suspended.”).
We need not decide that point, however, because in
this case Guzman-Bera did not receive a suspended
Although the state
court judgment from the 1995 conviction is not included in
the record, both defendant and the government represented
at oral argument that defendant was sentenced to straight
probation without reference to a suspended sentence.
On this issue we follow the reasoning of the United
States Court of Appeals for the Fifth Circuit and hold
that “when a court does not order a period of
incarceration and then suspend it, but instead imposes
probation directly, the conviction is not an ‘aggravated
felony.’” United States v. Banda-Zamora, 178
F.3d 728,730 (5th Cir. 1999).
analysis to the instant case, defendant was not sentenced
for his 1995 conviction until his violation of probation,
which occurred only after he was deported and illegally
reentered the United States. His sentence was not a substituted sentence, but an original
his 1995 conviction may have become an aggravated felony
after his reentry into the United States and he received the
18-month prison sentence, it was not one when he was
deported and when he reentered the United States, and should
not have been used for enhancement purposes under U.S.S.G.
Accordingly, we vacate the judgement of the district
court and remand for re-sentencing.