                              UNITED STATES of America, Plaintiff-Appellee,

                                                     v.
                    Geronimo AYALA-GOMEZ, a.k.a. Momo, Defendant-Appellant.

                                              No. 00-13456.

                                      United States Court of Appeals,
                                             Eleventh Circuit.

                                               July 5, 2001.

Appeal from the United States District Court for the Northern District of Georgia.(No. 00-00003-CR-01-
WCO), William C. O’Kelley), Judge.
Before CARNES, COX and NOONAN*, Circuit Judges.

        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,

        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."



    *
    Honorable John T. Noonan, Jr., U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
    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.
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 (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)

(directly imposed sentence of probation, as opposed to one substituted for an imposed prison term, does not



    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.
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 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, 191

Ga.App. 217, 381 S.E.2d 399, 400 (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 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").
         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, 74 L.Ed.2d 845 (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."

        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.
        Ayala's sentence is accordingly affirmed.
        AFFIRMED.
        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, 103 S.Ct. 986, 74 L.Ed.2d 845 (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 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 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, 120 S.Ct. 116, 145 L.Ed.2d 99 (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, 98 S.Ct. 566, 54 L.Ed.2d 538 (1978).

        I respectfully dissent.
