                                                                           [PUBLISH]

                    IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT                  FILED
                                                                 U.S. COURT OF APPEALS
                                     -----------------------       ELEVENTH CIRCUIT
                                                                       JUNE 26 2000
                                        No. 99-11190
                                                                    THOMAS K. KAHN
                                     -----------------------             CLERK
                           D. C. Docket No. 98-00540-1-CR-1-TWT

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

         versus

OSCAR MALDONADO-RAMIREZ,

                                                  Defendant-Appellant.


                                     ------------------------
                         Appeal from the United States District Court
                            for the Northern District of Georgia
                                    -------------------------
                                       (June 26, 2000)


Before BIRCH, FAY and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

         Oscar Maldonado-Ramirez appeals his sentence under 8 U.S.C. § 1326 for

illegally entering the United States after being deported.1 The district court


  1
      The statute states (in relevant part):
        (a) In general
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 § 1326. See

U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (1998).2 “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


       Subject to subsection (b) of this section, any alien who–
          (1) has been denied admission, excluded, deported, or removed . . . and
          thereafter
          (2) enters, attempts to enter, or is at any time found in, the United States,
          unless
       (A) 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 . . .
       shall be fined under Title 18, or imprisoned not more than 2 years, or both.

8 U.S.C. § 1326 (1998).
  2
     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.”

                                                 2
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 supervised release.



                                          I.

      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


                                          3
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 § 2L1.2(a). The 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.



                                         II.

A.




                                          4
      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. § 1101(a)(43). That

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 ambiguity. Congress 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 defendant’s favor.




                                           5
      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 part.” This

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


                                           6
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 Kansas court.

      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), & (T).


                                          7
      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 desired. Moreover, 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 additional language. 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


                                         8
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 felony. Until 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 years.” 8 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 provisions. See 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


                                          9
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).



B.

           When the district court sentenced Maldonado-Ramirez, it ordered that he not

“seek relief from removal proceedings.”3 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. § 1229a(a)). The 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


     3
         R3 at 33 (Sentencing Hr’g Tr.).

                                            10
evidence and to cross-examine government witnesses. See 8 U.S.C. § 1229(b)(4).

This circuit has held that the IIRIRA divests the federal courts of jurisdiction to

order deportation independently. See United States v. Romeo, 122 F.3d 941, 943

(11th Cir. 1997).

      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 deportation. Because this action will operate

in the defendant’s favor, the district court will not need to conduct a new

sentencing hearing. See United States v. Giraldo-Prado, 150 F.3d 1328, 1330

(11th Cir. 1998).



                                         III.

      We 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.


                                          11
