                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 98-50731
                         _____________________



UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                     versus

JUVENITO MONJARAS-CASTANEDA,

                                             Defendant-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas
_________________________________________________________________
                        September 16, 1999
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:


     The    issue   presented   in    this    appeal   is   one   of   statutory

construction.       Its resolution will determine whether Juvenito

Monjaras-Castaneda’s crime of conviction, illegally transporting

aliens, is an aggravated felony, thereby requiring an enhanced

sentence.
                                  I

     On September 24, 1992, six people illegally crossed the Rio

Grande into the United States near Eagle Pass, Texas.            They

continued to Smiley, Texas, where they joined Juventino Monjaras-

Castaneda (“Monjaras”).1     He was supposed to take them to Waco,

Texas, but a traffic accident on September 26 ended the trip.     The

police arrested Monjaras and the rest of the group.

     Monjaras later pled guilty to transporting aliens in violation

of 8 U.S.C. § 1324(a)(1)(B)(now § 1324(a)(1)(A)(ii)) and was

sentenced to six months’ imprisonment. After serving his sentence,

he was deported.    He reentered the country two years later and was

again deported in 1996.    In 1998, the border patrol arrested him,

along with his brother, near Carrizo Springs, Texas.

     This time, Monjaras pled guilty to illegal reentry into the

United States in violation of 8 U.S.C. § 1326(a) & (b)(2).        The

district court sentenced him to 46 months’ imprisonment.           In

calculating this sentence, the district court increased the base

offense level by 16 under U.S.S.G. § 2L1.2(b)(1)(A) because of

Monjaras’s   1992   aggravated   felony   conviction   for   illegally

transporting aliens.      In rejecting Monjaras’s objection to the

enhancement, the district court explained that Monjaras’s earlier


     1
      Monjaras had already met with the group in Mexico to arrange
the trip.



                                  2
six-month prison sentence had not been a sufficient deterrent to

stop him from returning to the United States.                 Monjaras now

challenges the      sentence enhancement by arguing that illegally

transporting    aliens    does   not   fall   within   the   definition   of

“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(A).

                                       II

                                       A

     There is only one issue before us on appeal: whether the term

“aggravated felony” in § 2L1.2(b)(1)(A)2 of the federal sentencing

guidelines includes illegal transport of aliens.         Application Note

One to this section explains that “[a]ggravated felony is defined

     2
      This section of the sentencing guidelines is titled
“Unlawfully Entering or Remaining in the United States,” and reads:

         (a) Base Offense Level: 8

         (b) Specific Offense Characteristic

          (1)    If the defendant previously was deported after a
                 criminal conviction, or if the defendant unlawfully
                 remained in the United States following a removal
                 order issued after a criminal conviction, increase
                 as follows (if more than one applies, use the
                 greater):

                 (A)     If the conviction was for an           aggravated
                         felony, increase by 16 levels.

                 (B)     If the conviction was for (i) any other
                         felony, or (ii) three or more misdemeanor
                         crimes of violence or misdemeanor controlled
                         substance offenses, increase by 4 levels.

(Emphasis added.)



                                       3
at 8 U.S.C. § 1101(a)(43).”   U.S.S.G. § 2L1.2, comment, n.1.    Under

8   U.S.C.   §   1101(a)(43)(N),   “The   term   ‘aggravated   felony’

means-- . . . an offense described in paragraph (1)(A) or (2) of

section 1324(a) of this title (relating to alien smuggling).”

Monjaras concedes that 8 U.S.C. 1324(a)(1)(A) describes the offense

of illegal transport of aliens, along with several other offenses

related to illegal aliens.3

     3
      (1)(A) Any person who--
          (i) knowing that a person is an alien, brings to or
               attempts to bring to the United States in any
               manner whatsoever such person at a place other than
               a designated port of entry or place other than as
               designated by the Commissioner, regardless of
               whether such alien has received prior official
               authorization to come to, enter, or reside in the
               United States and regardless of any future official
               action which may be taken with respect to such
               alien;
          (ii) knowing or in reckless disregard of the fact that an
               alien has come to, entered, or remains in the
               United States in violation of law, transports, or
               moves or attempts to transport or move such alien
               within the United States by means of transportation
               or otherwise, in furtherance of such violation of
               law;
          (iii)knowing or in reckless disregard of the fact that an
               alien has come to, entered, or remains in the
               United States in violation of law, conceals,
               harbors, or shields from detection, or attempts to
               conceal, harbor, or shield from detection, such
               alien in any place, including any building or any
               means of transportation;
          (iv) encourages or induces an alien to come to, enter, or
               reside in the United States, knowing or in reckless
               disregard of the fact that such coming to, entry,
               or residence is or will be in violation of law; or
          (v) (I) engages in any conspiracy to commit any of the
               preceding acts, or (II) aids or abets the



                                   4
     It seems straightforward that Monjaras’s illegal-transport-of-

aliens conviction qualifies him for the increased punishment, but

Monjaras    makes    three    statutory     construction   arguments     to   the

contrary.     All     three   concern     the   parenthetical   in   8   U.S.C.

§ 1324(a)(1)(A), “(relating to alien smuggling).”

     First, Monjaras contends that under the plain meaning of

§ 1324(a)(1)(A), a conviction for transporting aliens does not

“relate to alien smuggling.”              He points out that “smuggling”

involves crossing a national border.            Monjaras then concludes that

the only way to give effect to the phrase “relating to alien

smuggling” is to limit the scope of § 1101(a)(43)(N) to include

only the crimes in § 1324(a) that involve alien smuggling.

     Second, Monjaras supports his proposed construction by arguing

that it is consistent with other provisions of the Immigration and

Nationality Act and the sentencing guidelines interpreting them.

He begins by arguing that “smuggling” in § 1101(a)(43)(N) should

have the same meaning as in 8 U.S.C. § 1251(a)(1)(E) (recodified at

8 U.S.C. § 1227).         That section defines “smuggling” as having

“encouraged, induced, assisted, abetted, or aided any other alien

to enter or to try to enter the United States in violation of the




                    commission of any of the preceding acts,

     shall be punished as provided in subparagraph (B).



                                        5
law.”     Monjaras then cites case law4 interpreting § 1251(a)(1)(E)

to require entry into the United States in order to qualify as

“smuggling.”     He next points to the title of U.S.S.G. § 2L1.1,

“Smuggling, Transporting, or Harboring an Unlawful Alien.”               Since

it   separates   “smuggling”   and    “transporting”     as    two   different

offenses, Monjaras believes we should treat each differently.

      Third, Monjaras contends that we must construe any ambiguity

in § 1101(a)(43)(N) in his favor under the rule of lenity.

      The government responds with the following five arguments of

its own.     First, the intent of Congress has been to expand the

definition of “aggravated felony.”5            Second, the plain meaning of

§ 1101, § 1324, and U.S.S.G. § 2L1.2 includes transportation of

aliens     because   that   offense       is    expressly     enumerated    in

§ 1101(a)(43)(N).    Third, the government argues that the “relating

to” parenthetical merely describes the general nature of the

felonies in § 1324(a)(1)(A) rather than which of those felonies

apply to § 1101(a)(43)(N).       Fourth, even if the “relating to”

parenthetical is restrictive, not descriptive, a broad reading of

“relating to” still includes transporting aliens.             Fifth, the rule


      4
      The case Monjaras cites is Carbajal-Gonzalez v. INS, 78 F.3d
194, 201 (5th Cir. 1996).
      5
      The government cites Richardson v. Reno, 162 F.3d 1338, 1350
n.42 (11th Cir. 1998) in support of its interpretation of
“congressional intent.”



                                      6
of   lenity    does     not   apply   because   the   two   statutes   and    the

sentencing guidelines are unambiguous.

                                         B

      We review the district court’s application of the sentencing

guidelines de novo, United States v. Hinojosa-Lopez, 130 F.3d 691,

693 (5th Cir. 1997), and conclude that “aggravated felony” in

U.S.S.G. § 2L1.2(b)(1)(A) includes transportation of aliens.                  The

central question is whether the parenthetical in § 1101(a)(43)(N)

is descriptive or restrictive.

      The     process    of    statutory     construction    begins    with    an

examination of the statute’s actual language.                United States v.

Alvarez-Sanchez, 511 U.S. 350, 356, 114 S.Ct. 1599, 128 L.Ed.2d 319

(1994).     The language at issue is from § 1101(a)(43)(N): “The term

‘aggravated felony’ means-- . . . an offense described in paragraph

(1)(A) or (2) of section 1324(a) of this title (relating to alien

smuggling).”

      An    examination        of     this   language   reveals       that    the

parenthetical, “(relating to alien smuggling)” refers to “paragraph

(1)(A) or (2) of section 1324(a) of this title,” not “offense.”

The conventional rules of grammar demonstrate this.             See Norman J.

Singer, 2A Sutherland Statutory Construction § 45.13, at 78 (5th

ed. 1992)(“[L]egislators can be presumed to rely on conventional

language usage.”).        If the parenthetical referred to “offense,” it




                                         7
would have been placed directly after that word. The parenthetical

instead has been placed in the prepositional phrase introduced by

“in,” of which “paragraph” is the subject.                    See John E. Warriner

and   Francis    Griffith,     English       Grammar     and    Composition     37-40

(Heritage     ed.,       Harcourt   Brace       Jovanovich        1977)(discussing

prepositional phrases).

      This examination indicates that the parenthetical is more

reasonably interpreted as descriptive rather than limiting. If the

parenthetical     referred     to   “offenses,”        then     the   statute   would

effectively      read:    “offense[s]        (relating     to    alien   smuggling)

described in paragraph (1)(A) or (2) of section 1324(a) of this

title,” which obviously would be a very different proposition that

would clearly favor Monjaras’s interpretation.                  But, alas, that is

not the way the statute is written.

      Reading the parenthetical to refer to “paragraph” does not end

our   inquiry,    however,     because       there   are      still   two   possible

interpretations.     Should we read it as “the offenses described in

paragraph (1)(A) or (2) that are smuggling offenses,” or as “the

offenses described in paragraph (1)(A) or (2), which generally

deals with smuggling offenses”?

      We read the parenthetical descriptively based on the general

context and structure of § 1101(43).             Courts have often construed

parentheticals in statutes in this manner based on these two




                                         8
considerations.      See, e.g.,     Quarles v. St. Clair, 711 F.2d 691,

700 n.28 (5th Cir. 1983)(concluding that parenthetical in 42 U.S.C.

§ 602(a)(28) was for clarification purposes only); United States v.

Herring,    602    F.2d   1220,   1223    (5th    Cir.   1979)(holding    that

parenthetical in 18 U.S.C. § 1961 was “merely to aid identification

of [18 U.S.C.] § 2314 rather than to limit”); United States v.

Kassouf, 144 F.3d 952, 959-60 (6th Cir. 1998)(finding parenthetical

in 26 U.S.C. § 6531(6) descriptive); United States v. Garner, 837

F.2d 1404, 1419 (7th Cir. 1987)(finding parenthetical in 18 U.S.C.

1961(1)(B) “mere ‘visual aids,’ designed to guide the reader

through what would otherwise be a litany of numbers”).

       The context in which the parenthetical appears in this case

suggests its descriptive nature.            Section 1101(a)(43) contains a

long list of aggravated felonies that it references by section

number.    Without any descriptions of what this “litany of numbers”

referred    to,    determining    whether    an   offense   qualified    as   an

aggravated felony would be a long and arduous process.             One would

need to look up each section number in the Code to get to the right

one.    The parentheticals here provide an “aid to identification”

only.

       The government makes a strong structural argument by pointing

to parentheticals in § 1101(a)(43) that are indeed expressly

limiting.    One    example is    § 1101(a)(43)(F), which reads “a crime




                                      9
of violence (as defined in § 16 of Title 18, but not including a

purely political offense) for which a term of imprisonment is at

least one year.”        (Emphasis added.)     Another is § 1101(a)(43)(J):

“an offense described . . . in section 1084 (if it is a second or

subsequent offense).”        (Emphasis added.)

       Congress thus clearly demonstrated its ability to exclude some

specific offenses from those listed in the more general sections.

We   will   not    therefore    infer    exclusion      in   §    1101(a)(43)(N),

especially      since    transportation       of   aliens        is   specifically

enumerated in § 1324(a).              “A parenthetical is, after all, a

parenthetical, and it cannot be used to overcome the operative

terms of     the   statute.”      Cabell     Huntington      Hospital,    Inc.    v.

Shalala, 101 F.3d 984, 990 (4th Cir. 1996).

       The phrase “relating to alien smuggling” does describe the

offenses in § 1324(a).         All involve the transportation, movement,

and hiding of aliens into and within the United States.

       We can quickly dispose of Monjaras’s arguments.                    We have

already addressed the statute’s plain meaning and need not restate

our reasoning.       Since that meaning is plain, use of the rule of

lenity is not warranted.        The rule applies only when the statute is

ambiguous.        United States v. Shabani, 513 U.S. 10, 17 (1994)

(citations omitted); United States v. Luna, 165 F.3d 316, 344 (5th

Cir.   1999).       Finally,    the   provision    of    the     Immigration     and



                                        10
Nationality Act that Monjaras relies on simply defines smuggling,

which is irrelevant to our inquiry.             And Monjaras’s restatement of

the   title   of    U.S.S.G.     §   2L1.1,    “Smuggling,      Transporting,    or

Harboring     an    Unlawful     Alien,”      indicates   that    smuggling     and

transporting       should   be   treated      together,   not    separately,    for

purposes of this guideline.

      Even if Monjaras were correct that the parenthetical is

limiting, he ignores the “relating to” portion of “(relating to

alien smuggling).” Transporting aliens is quite often “related to”

smuggling.    This was especially true in Monjaras’s case, where the

transportation was merely one step in smuggling the six illegal

aliens from Mexico and Waco.

      As a result, we conclude that the parenthetical “(relating to

alien smuggling)” acts only to describe, not to limit the “offenses




                                        11
described   in    paragraph   (1)(A)    or   (2)   of   section    1324(a).”6

Transporting     aliens,   therefore,   is   an    aggravated     felony   for

purposes of U.S.S.G. § 2L1.2(b)(1)(A).

     For the reasons stated herein, we AFFIRM.




     6
      Our construction accords with the legislative history as
well.   See H.R. Rep. No. 104-22, at 5 (1995) (“H.R. 688 makes
several amendments to the Immigration and Nationality Act . . . the
bill would add certain crimes to the definition of ‘aggravated
felony’. . . .”); id. at 7 (“One of the steps the Committee
recommends . . . is to add several crimes to the definition of
‘aggravated felony.’”); id. (“In adding crimes to the list, effort
was made to ensure that the overall reach of the definition would
be consistent with the sentencing guidelines.”); H.R. Rep. No.
104-22, at 5 (1995)(“[these amendments] address the problems of
aliens who commit serious crimes while they are in the United
States and to give Federal law enforcement officials additional
means to combat organized immigration crime.”)



                                   12
     A F F I R M E D.




13
POLITZ, Circuit Judge, dissenting:



      Persuaded that Congress and the Sentencing Commission did not

intend for mere transportation of aliens without a corresponding

act   of    smuggling   to     be       considered    an   aggravated   felony,    I

respectfully must dissent.

      As the majority has noted, Juventino Monjaras-Castaneda pled

guilty to being found in the United States after previously having

been deported, resulting in a base offense level of eight under the

Guidelines.     With an acceptance of responsibility adjustment, the

sentencing range would have been 10-16 months.7                      The district

court,     however,   applied       a    16-level     enhancement   under   USSG   §

2L1.2(b)(1)(A),       which,      with     an    acceptance    of   responsibility

adjustment,     resulted     in     a     Guideline    range   of   46-57   months.

Monjaras was sentenced to 46 months imprisonment.

      USSG § 2L1.2(b)(1)(A) requires the 16-level increase in the

base offense level if the defendant previously was deported or

removed after a criminal conviction provided the conviction was for

an “aggravated felony.”           Application note one to § 2L1.2 observes

that an aggravated felony “is defined at 8 U.S.C. § 1101(a)(43)

without regard to the date of conviction of the aggravated felony.”

      7
       The 10-16 month range would have resulted from a four-level
enhancement for a previous non-aggravating felony and a two-level
acceptance of responsibility adjustment.



                                            14
Under 8 U.S.C. § 1101(a)(43)(N), an “aggravated felony” includes

“an offense described in paragraph (1)(A) or (2) of section 1324(a)

of this title (relating to alien smuggling).”                  M o n j a r a s

previously    had   been   deported      because   he    was    convicted   of

transportation of aliens under 8 U.S.C. § 1324(a)(1)(A).               In that

offense, Monjaras met six undocumented aliens in Smiley, Texas,

near San Antonio, and began driving them to Waco.                 Because the

transportation offense of which he was convicted did not involve

bringing aliens across the border, Monjaras contends that the crime

is not one “relating to alien smuggling” and cannot be used for the

§ 2L1.2(b)(1)(A) sentencing enhancement.

     Although the majority correctly frames the issue, I must

disagree with its resolution. By concluding that the parenthetical

phrase “relating to alien smuggling” is merely a description of the

crimes in § 1324(a), the majority necessarily ignores both the

plain    language   of   the   statute     and   the    structure    of   other

immigration provisions.

     The fundamental rule of statutory construction requires that

courts give effect to every word in a statute.8                “Smuggling” is

defined as the “fraudulent taking into a country, or out of it,

     8
       Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998) (citing Crist
v. Crist, 632 F.2d 1226, 1233 n.11 (5th Cir. 1980) (stating that
courts must “give effect, whenever possible to all parts of a
statute and avoid an interpretation which makes a part redundant or
superfluous”)).



                                      15
                                      15
merchandise which is lawfully prohibited.”9         Consequently, because

“alien” is defined as a non-citizen or non-national of the United

States,10 “alien smuggling” would be the illegal taking of a non-

citizen into the country, an action which, to me, entails a

crossing of the border.    Further, there are several crimes listed

in § 1324(a)(1) & (2) that do not involve the bringing of aliens

into the United States, such as encouraging aliens to enter the

country,11   and   concealing,   harboring,    or   shielding   them   from

detection.12   I am of the belief that if Congress had intended to

include any crime listed in § 1324(a)(1) or (2) as an aggravated

felony, it simply would have said so.         That it chose not to do so

but, rather, used the “relating to alien smuggling” language is not

properly weighed by the majority in my view.13




     9
        Black’s Law Dictionary 1389 (6th ed. 1990). Black’s Law
Dictionary also notes that “smuggling” and “smuggle” have “well-
understood meaning[s] at common law.” Id.
     10
          8 U.S.C. § 1101(a)(3).
     11
          8 U.S.C. § 1324(a)(1)(A)(iv).
     12
          8 U.S.C. § 1324(a)(1)(A)(iii).
     13
        The majority places great emphasis on grammatical rules and
sentence structure in concluding that the parenthetical is
descriptive rather than restrictive.     The majority recognizes,
however, that reliance on grammar and construction does not
eliminate a restrictive interpretation of the parenthetical. See
ante at 8-9 (noting the two possible interpretations remaining
after grammatical analysis).



                                   16
                                   16
     My resolution is buttressed by the construction of other

immigration provisions.       For example, § 1324 sets more serious

penalties for offenses which involve the bringing of aliens into

the United States as compared to the harboring, transporting, and

concealing offenses, in which the alien already is in the country.14

Additionally, elsewhere in the Immigration and Nationality Act

“smuggling” is defined as having “encouraged, induced, assisted,

abetted, or aided any other alien to enter or to try to enter the

United States in violation of law.”15         Likewise, the disjunctive

division    of   Guideline   provision     titles   such   as   “Smuggling,

Transporting,     or   Harboring   an    Unlawful   Alien”16    indicates   a

distinction between smuggling and transporting offenses.17




     14
        Compare the ten-year penalty for offenses in which a person
“brings   to”   the   United  States   an   alien,   8   U.S.C.   §
1324(a)(1)(B)(i), with the five-year penalty for transporting,
concealing, and harboring offenses, 8 U.S.C. § 1324(a)(1)(B)(ii).
     15
        8 U.S.C. § 1227(a)(1)(E)(i) (emphasis added). See Sullivan
v. Stroop, 496 U.S. 478 (1990) (holding that identical words used
in different parts of the same act are intended to have the same
meaning); Matador Petroleum Corp. v. St. Paul Surplus Lines Ins.
Co., 174 F.3d 653 (5th Cir. 1999).
     16
           See USSG § 2L1.1 (emphasis added).
     17
        Holly Farms Corp. v. N.L.R.B., 517 U.S. 392 (1996) (holding
that terms connected by a disjunctive are to be given separate
meanings) (quoting Reiter v. Sonotone Corp., 442 U.S. 330 (1979));
Crist, 632 F.2d at 1233 n.11.



                                    17
                                    17
      Further, the majority ignores the rule of lenity, which

requires    that   ambiguities    in    federal       statutes   or    sentencing

enhancements are to be considered in the defendant’s favor and are

not to be construed in a way that maximizes the penalty.18                Because

Congress and the Sentencing Commission did not define “alien

smuggling” and the crimes that relate to the smuggling, it would

appear that there exists an ambiguity in the statute that should

have resulted in an interpretation favorable to Monjaras.

      Finally, the very seriousness of the 16-level enhancement

cannot go unnoticed.      Using the bottom of the Guideline range, the

aggravated   felony   enhancement      caused     a    four-fold      increase   in

Monjaras’ sentence. In my opinion the majority’s holding relies on

far   too   slender   a   reed   to    warrant    this    dramatic      increase.

Convinced that Congress meant to require a border-crossing element

when it authorized an aggravated felony enchantment for crimes

“relating to alien smuggling,” I must dissent.




      18
         United States v. Brito, 136 F.3d 397 (5th Cir.), cert.
denied, 118 S. Ct. 1817 (1998).



                                       18
                                       18
