               Case: 12-13643       Date Filed: 11/15/2013     Page: 1 of 24


                                                                                [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 12-13643
                              ________________________

                     D.C. Docket No. 1:12-cr-00070-WSD-RGV-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff - Appellee,
                                           versus

ROBERTO GARZA-MENDEZ,

                                                                 Defendant - Appellant.

                               _______________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                   (November 15, 2013)

Before MARTIN and FAY, Circuit Judges, and GOLDBERG, ∗ Judge.

FAY, Circuit Judge:




∗
 Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
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        Roberto Garza-Mendez, a Mexican citizen who pled guilty to unlawful re-

entry into the United States by an aggravated felon, in violation of 8 U.S.C. §

1326(a) and (b)(2), appeals the calculation of his sentence. The district judge

applied an 8-level increase under U.S.S.G. § 2L1.2(b)(1)(C) (2011) for Garza-

Mendez’s Georgia-family-violence-battery conviction, declined to give him a

variance or departure based on cultural assimilation, and imposed a 3-year term of

supervised release, including a special condition requiring Garza-Mendez to report

his address from Mexico after he is deported. We affirm.

                                I. BACKGROUND

        Garza-Mendez’s deportation from the United States resulted from his guilty

plea and conviction under a Georgia-family-violence-battery statute for striking his

girlfriend, the mother of his three minor children, causing visible bodily injury.

On August 30, 2007, he was sentenced to confinement for 12 months; the

remainder of his sentence was probated after he had served 30 hours in prison.

Garza-Mendez was deported from the United States to Mexico on January 25,

2011.

        In February 2011, he illegally re-entered this country and subsequently was

arrested for striking an unattended vehicle and driving without a driver’s license on

January 27, 2012. Following confinement in local custody for these offenses,

Garza-Mendez was released to the custody of the Bureau of Immigration and

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Customs Enforcement on outstanding warrants for failure to appear and probation

violation on February 7, 2012. He was transferred to the United States Marshals

Service on March 9, 2012. A grand jury indicted him for illegal re-entry into the

United States on March 6, 2012.

       The only sentence calculation by the Probation Office in his Pre-Sentence

Investigation Report to which Garza-Mendez objected was the addition of 8 levels

under U.S.S.G. § 2L1.2(b)(1)(C) for his previous conviction of an aggravated

felony, the family-violence battery. 1 He argued his family-violence-battery

conviction was not an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C),

because he was not sentenced to at least a year of imprisonment as required by 8

U.S.C. § 1101(a)(43)(F).

       Following Garza-Mendez’s guilty plea to the family-violence battery,

Gwinnett County Judge Matthew Robins sentenced Garza-Mendez on August 30,

2007, to “12 months” of “confinement in the Gwinnett County Comprehensive

Correctional Complex,” credited him “30 hours” for time served, permitted the

remainder of the sentence to be served on probation, and fined him “$350.00.” R1-



1
  Garza-Mendez had a base offense level of 8 under U.S.S.G. § 2L1.2(a); the addition of 8 levels
under U.S.S.G. § 2L1.2(b)(1)(C) yielded an adjusted offense level of 16. The subtraction of 3
levels for Garza-Mendez’s acceptance of responsibility resulted in a total offense level of 13.
For various criminal and traffic offenses (driving drunk or without a license, speeding, driving
aggressively), Garza-Mendez’s criminal history category was III. His resulting Sentencing
Guidelines custody range was 18 to 24 months, a fine of $3,000 to $30,000, and supervised
release of 1 to 3 years.
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14 Ex. 1. Following his apprehension for illegal re-entry into the United States in

January 2012, Garza-Mendez sought a clarification of his sentence. On April 17,

2012, Gwinnett County Judge Pamela D. Smith issued a clarification order:

      Having reviewed the Court’s August 30, 2007 sentence in the above-
      styled case, the Court finds that it is appropriate to clarify what
      sentence the Court imposed. The Court sentenced Defendant to
      twelve (12) months of probation with the first thirty (30) hours to be
      served in custody. The Court gave Defendant credit for thirty (30)
      hours that Defendant had already served. The Court did not sentence
      Defendant to twelve (12) months of incarceration.
R1-14 Ex. 2.

      At his June 26, 2012, federal sentencing for illegal re-entry into the United

States of a previously deported alien, Garza-Mendez argued the state-court

clarification order showed he had not been sentenced to 12 months of

imprisonment for his family-violence-battery crime. Consequently, he contended

he should not have an 8-level increase under U.S.S.G. § 2L1.2(b)(1)(C) for a

crime, where the sentence was not 12 months of confinement. The district judge

denied this objection, denied his request for downward departure under U.S.S.G. §

2L1.2 cmt. n.8 for cultural assimilation, and imposed a reporting requirement from

Mexico as a special condition of his supervised release. He sentenced Garza-

Mendez to the middle of the Sentencing Guidelines range: 20 months of

imprisonment, 3 years of supervised release, and a $100 mandatory special

assessment. R1-17 at 1-4. Following imposition of his sentence, Garza-Mendez


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objected to the application of U.S.S.G. § 2L1.2(b)(1)(C), the failure to depart for

cultural assimilation, and the special condition of his supervised release requiring

him to report from Mexico. He pursues these issues on appeal.

                                 II. DISCUSSION

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

      Under U.S.S.G. § 2L1.2(b)(1)(C), “[i]f the defendant previously was

deported” and had “a conviction for an aggravated felony,” the sentencing judge

must increase the sentence “by 8 levels.” Id. An aggravated felony is a crime of

violence for which the term of imprisonment is at least one year. 8 U.S.C. §

1101(a)(43)(F). We have held “an aggravated felony is defined by the sentence

actually imposed.” United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir.

2000) (per curiam); see United States v. Christopher, 239 F.3d 1191, 1193, 1194

(11th Cir. 2001) (recognizing a misdemeanor crime of violence qualifies as an

“aggravated felony” under the Sentencing Guidelines; “felony status is not an

absolute requirement for the use of the ‘aggravated felony’ enhancement”). A term

of imprisonment includes “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.” 8 U.S.C. § 1101(a)(48)(B)

(emphasis added); see Guzman-Bera, 216 F.3d at 1021 (“A reference to a term of




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imprisonment is deemed to include the period of incarceration regardless of any

suspension of either the imposition or execution of that sentence.”).

      On appeal, “Garza-Mendez does not contend that [his state] conviction is not

a ‘crime of violence’ under 18 U.S.C. § 16”; instead, he argues that he was not

sentenced to an imprisonment term of at least one year. Appellant’s Br. at 13. He

bases his argument on another Gwinnett County judge’s clarification order stating

he had not been sentenced to 12 months of incarceration. In overruling Garza-

Mendez’s objection at sentencing, the district judge found the clarification “[wa]s

simply the judge’s stating what actually she intended to happen, but it doesn’t

impact the actual imposition of the sentence that was imposed.” R3 at 150-51

(emphasis added). “We review questions of law with respect to the district court’s

application of the Sentencing Guidelines de novo.” United States v. Aguilar-Ortiz,

450 F.3d 1271, 1272 (11th Cir. 2006).

      There are three problems with the argument presented by Garza-Mendez

concerning the state-court judge’s subsequent clarification order. First, the state

judge, who issued the clarification order, was not the sentencing judge. Second,

the state judge did nothing more than review Garza-Mendez’s August 30, 2007,

sentence to issue the clarification order. Third, the August 30, 2007, sentence

could not be any clearer—Garza-Mendez was sentenced to “12 months” of

“confinement,” despite the subsequent state judge’s interpretation. See Appendix.

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This was the sentence imposed irrespective of any suspension of the confinement

term. See 8 U.S.C. § 1101(a)(48)(B). 2

       Garza-Mendez did not challenge his 12-month-confinement sentence, when

it was imposed in 2007. Five years later, his counsel requested a clarification from

a different state-court judge in April 2012, prior to his June 26, 2012, federal

sentencing for illegal re-entry into the United States. The substantial period

between the imposition of Garza-Mendez’s original sentence and the clarification

of that sentence by a different state judge, strategically timed to precede and

influence his federal sentence for illegal re-entry into the United States, presents an




2
  The dissent focuses solely on a different state-court judge’s interpretation of Garza-Mendez’s
sentencing order five years after it was imposed and proclaims this subsequent interpretation
should be followed based on comity. But Garza-Mendez’s crime of illegal re-entry into the
United States put him in federal court, where his federal sentence depends on the original
confinement sentence as imposed, regardless of any suspension of the confinement term. See 8
U.S. C. § 1101(a)(48)(B); Guzman-Bera, 216 F.3d at 1021. The clarification order is flatly
contrary to the sentencing order. See Appendix. Nor does the subsequent state judge rely upon
any consultation with the sentencing judge.
        We do not suggest the subsequent state judge was attempting to apply federal law in the
clarification order. As the district judge recognized, the subsequent Gwinnett County judge may
think that is what the sentencing judge meant to do, but that is not what he did. Comity is respect
for the law of another jurisdiction, but not blind adherence! See Société Nationale Industrielle
Aérospatiale v. U.S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 543 n.27 (1987)
(“‘“Comity,” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of
mere courtesy and good will, upon the other.’” (quoting Hilton v. Guyot, 159 U.S. 113, 163-64
(1895))); see also Wright v. West, 505 U.S. 277, 305 (1992) (O’Connor, J., concurring) (“We
have always held that federal courts, even on habeas, have an independent obligation to say what
the law is.”). This case is not about comity; it concerns applying the correct federal law to
Garza-Mendez’s federal sentence for illegal re-entry into the United States.

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issue of first impression in our circuit. 3 In precursor opinions, we have recognized

“[w]ords in federal statutes reflect federal understandings, absent an explicit

statement to the contrary”; we decided “the term of imprisonment described in §

1101(43) . . . include[s] 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.’” United States v.

Ayala-Gomez, 255 F.3d 1314, 1319 (11th Cir. 2001) (per curiam) (citing Dickerson

v. New Banner Inst., Inc., 460 U.S. 103, 111-12 (1983)) (emphasis added); see

Botes v. U.S. Att’y Gen., 436 F. App’x 932, 934 (11th Cir. 2011) (per curiam)

(unpublished but recognized for persuasive value) (holding the Board of

Immigration Appeals did not err in denying reconsideration of petitioner’s motion


3
  The dissent misconstrues why we state defense counsel’s seeking clarification of Garza-
Mendez’s sentencing order from a different Gwinnett County judge was strategically planned.
Garza-Mendez did not question his state sentence or seek clarification when it was imposed.
After any state procedural period for challenging the sentencing judge’s order had long passed,
Garza-Mendez’s lawyer sought to clarify his original sentence five years after it was imposed
and two months before Garza-Mendez’s federal sentencing for illegal re-entry into the United
States. While his lawyer was being an innovative advocate, the federal sentencing judge had to
apply federal law, based solely on the original state sentence. We simply noted the obvious
facts.
         The dissent’s assertion that we use comity only when it increases a defendant’s sentence
is off the mark. When comity aids defendants in reducing federal sentences, the overwhelming
probabilities are there would be no appeals. The dissent does not cite one case in the posture of
this case, where defense counsel obtained a clarification order of a state-court sentence well after
the state procedural period for challenging the sentence had expired to attempt to alter a later
federal sentence in federal court. Under the circumstances of this case, the district judge
determined the subsequent state-court clarification order was not entitled to deference, because
of the unambiguous language of the sentencing order as well as federal statutory and circuit law.
The dissent’s charges impugning the integrity of our court are both outrageous and totally
unfounded.
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to reopen his removal proceedings to reconsider whether his 12-month sentence,

including 60 days of confinement and 10 months on probation, caused his

imprisonment term to be less than one year). A portion of a sentence to be served

on probation nevertheless returns the convicted defendant to prison if probation is

violated.4

       Because this is a federal case for unlawful re-entry into the United States

following deportation and involves the interpretation of the Sentencing Guidelines

and federal statutes, a federal judge is in a better position to interpret the state-

sentence order regarding its effect on Garza-Mendez’s federal sentence under

federal law than another state judge, who did not impose his sentence. See

Aguilar-Ortiz, 450 F.3d at 1273 (stating a federal court generally “look[s] no

farther than the judgment of conviction” and applicable federal statutes to

determine “whether a prior conviction is a qualifying offense for enhancement




4
  At sentencing, the district judge explained to defense counsel that Garza-Mendez’s battery
crime required him “to go to jail for a year,” and the probation portion was “a way to hold [him]
accountable” if he failed to comply with “what [he was] supposed to do.” R3 at 141. He told
defense counsel: “[Y]ou are just taking this term probation and somehow twisting it to say . . .
that’s not a sentence of incarceration.” Id. at 142. The judge further explained: “[W]hen a judge
checks a box and says one year, he’s intending to impose a prison sentence of one year.” Id. at
143. Defense counsel acknowledged that, if Garza-Mendez violated his probation, then he could
go to jail for “the maximum amount of time on the original sentence, just like in federal court.”
Id. at 146. The judge determined that “[Garza-Mendez] was deported knowing that he had
committed a crime of violence for which he was sentenced to a year, and the moment that he
crossed the border when he was removed from the [United States], he knew that was the
sentence that he was under.” Id. at 151 (emphasis added).
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purposes”). The original state sentence plainly speaks for itself but then must be

interpreted under federal law in federal court concerning a federal crime.

      Accordingly, our interpretation of whether Garza-Mendez’s original

sentence was an imprisonment term of at least one year governs, not the subjective,

interpretive clarification order obtained from a different state judge five years after

imposition of the sentence for the purpose of preventing an 8-level enhancement

for his state-battery conviction. Garza-Mendez pled guilty to a state crime of

violence, which he does not contest, and was sentenced to a term of imprisonment

of at least one year. That qualifies as an aggravated felony as defined by 8 U.S.C.

§ 1101(a)(43)(F), which made application of the 8-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(C) proper.

B. Failure to Depart Downward for Cultural Assimilation

      Garza-Mendez contends the district judge erred for failing to depart

downward based on his cultural assimilation in the United States under U.S.S.G. §

2L1.2 cmt. n.8. The Sentencing Guidelines allow departure under cultural

assimilation only where

      (A) the defendant formed cultural ties primarily with the United States
      from having resided continuously in the United States from childhood,
      (B) those cultural ties provided the primary motivation for the
      defendant’s illegal reentry or continued presence in the United States,
      and (C) such a departure is not likely to increase the risk to the public
      from further crimes of the defendant.



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U.S.S.G § 2L1.2 cmt. n.8. In determining whether this departure is appropriate,

the sentencing judge considers:

       (1) the age in childhood at which the defendant began residing
       continuously in the United States, (2) whether and for how long the
       defendant attended school in the United States, (3) the duration of the
       defendant’s continued residence in the United States, (4) the duration
       of the defendant’s presence outside the United States, (5) the nature
       and extent of the defendant’s familial and cultural ties inside the
       United States, and the nature and extent of such ties outside the
       United States, (6) the seriousness of the defendant’s criminal history,
       and (7) whether the defendant engaged in additional criminal activity
       after illegally reentering the United States.
Id. In denying his request for a departure or variance for cultural assimilation,

Garza-Mendez argues the judge had a single-minded focus on his criminal history

with no consideration of his assimilation into the United States.5

       We review all sentences “under a deferential abuse-of-discretion standard.”

Gall v. United States, 552 U.S. 38, 41 (2007). A district judge need not discuss

each 18 U.S.C. § 3553(a) factor in explaining a sentence, provided defendant’s

arguments at sentencing are considered, and the judge states “the § 3553(a) factors

[have been taken] into account.” United States v. Sanchez, 586 F.3d 918, 936

(11th Cir. 2009). “The weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court”; we will not remand



5
  Among Garza-Mendez’s arguments for assimilation consideration are his parents brought him
to the United States when he was seven, he learned English in one year, and he attended
elementary school, middle school, and high school through eleventh grade in the Atlanta,
Georgia, area.
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for resentencing unless “we are left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553 factors

by arriving at a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)

(citation and internal quotation marks omitted).

      The sentencing judge recognized that Garza-Mendez’s “immigration history

is that he’s in the United States illegally” and “he illegally returned to the United

States,” which is the basis of his conviction under 8 U.S.C. § 1326(a) and (b)(2).

R3 at 160. In addition, the government noted his criminal history in the United

States was “extremely lengthy.” Id. at 163. Although brought to the United States

“as a child at seven” in 1996, “[a]fter he turned 17 in 2006 is when his criminal

history began,” and “basically every year from 2006 through 2012, he was arrested

and/or convicted for crimes in the U.S.” Id. Garza-Mendez had “ten convictions

for either driving without a license or driving on a suspended license,” “a battery

conviction,” and “false reporting of a crime.” Id. at 163, 164. Following his return

after deportation, Garza-Mendez engaged in his former vehicular offenses, some of

which involved the safety of others—“speeding, improper child restraint, [and]

aggressive driving.” Id. at 165. In 2012, prior to his federal sentencing in June, he

had “two more arrests driving without a license and one resulting in a conviction.”

Id. at 164. The government noted his “pattern and practice” of criminal conduct in

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the United States, resulting in “multiple convictions of the same offense” and a

DUI and family-violence battery, both of which are serious offenses. Id. at 165.

      The district judge recognized that, prior to his illegal return to the United

States, Garza-Mendez “had a history of not being able to comport his conduct to

the law, including striking a woman that is apparently the mother of his children.”

Id. at 160. “[H]e will be sentenced based in part upon his criminal history and his .

. . inability to conform his conduct to the laws of the United States.” Id. at 161. In

denying Garza-Mendez a departure for cultural assimilation, the judge explained:

             There aren’t a lot of people, Mr. Garza-Mendez, who are
      brought here by their parents when they are children that have had as
      hard a time as you have complying with some of the simplest rules
      that provide people in the United States with a safe environment. And
      you just can’t do that, and you haven’t been able to do that for a
      number of years.
            And a cultural assimilation departure . . . is one that is not very
      often given, and it’s reserved for those unique cases where there has
      been somebody who has come to the United States when they were
      young, completely integrated in the culture, and have lived lawfully.
            One of the assimilation requirements is that you come to the
      United States and observe its laws, that you don’t hurt people, you
      don’t put people at risk, that you don’t lie to the authorities about
      crimes. And you just haven’t been able to do that.

           And this isn’t even a close case on cultural assimilation. You
      would not qualify for that.

Id. at 167-68. He also said he had “looked at all the factors under 3553” and

concluded “the community is entitled to a just punishment. That’s what most—

half of the factors deal with, and that is just punishment, deterring you.” Id. at 171.
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      The judge determined Garza-Mendez’s criminal history both before and

after he was deported outweighed the other § 3553(a) factors. Therefore, he

concluded a departure or variance for cultural assimilation was inappropriate for

Garza-Mendez and sentenced him to 20 months of imprisonment. Based on our

review of the record and sentencing proceedings, we find no abuse of discretion in

the judge’s declining to accord Garza-Mendez a departure or variance on cultural

assimilation.

C. Extraterritorial Reporting on Supervised Release

      Garza-Mendez challenges the district judge’s requiring him to report from

Mexico during his 3-year term of supervised release, following his deportation. A

special condition of Garza-Mendez’s supervised release states that, after his

deportation, he

      shall notify, in writing and within ten (10) calendar days, the United
      States Probation Office in the Northern District of Georgia of his
      current address in the country to which he is deported and any later
      change in residence address. Failure to do so will constitute a
      violation of his supervised release.

R1-17 at 3. “We review the district court’s imposition of a special condition of

supervised release for abuse of discretion, so long as the objection was preserved

for appeal.” United States v. Guzman, 558 F.3d 1262, 1264 (11th Cir. 2009) (per

curiam) (citation and internal quotation marks omitted).

      After Garza-Mendez’s sentence was imposed, defense counsel


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       object[ed] to [the] terms of supervision to the extent that it requires
       reporting from Mexico the ten days after he gets there[,] his
       residence[,] and any change of residence . . . . as being beyond the
       jurisdiction of the Court, and also as an unreasonable condition of
       supervision in light of the fact that there is no guarantee . . . someone
       can actually get to their home in ten days when dropped off at the
       border or wherever they are taken.

R3 at 176. On appeal, he further contends U.S.S.G. § 5D1.1(c) instructs a

sentencing judge not to impose supervised release, when the convicted defendant is

likely to be deported following imprisonment. 6 The commentary application notes

provide: “The court should, however, consider imposing a term of supervised

release on such a defendant if the court determines it would provide an added

measure of deterrence and protection based on the facts and circumstances of a

particular case.” U.S.S.G. § 5D1.1 cmt. n.5 (emphasis added). The Sentencing

Guidelines permit imposition of any condition of supervised release that is

“reasonably related” to the § 3553(a) factors, as long as the conditions “involve no

greater deprivation of liberty than is reasonably necessary for the purposes set forth

[in § 3553(a)] and are consistent with any pertinent policy statements issued by the

Sentencing Commission.” U.S.S.G § 5D1.3(b); see United States v. Zinn, 321 F.3d

1084, 1089 (11th Cir. 2003) (recognizing, under 18 U.S.C. § 3583(d), “the district




6
  The relevant Guideline provides: “The court ordinarily should not impose a term of supervised
release in a case in which supervised release is not required by statute and the defendant is a
deportable alien who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c).
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court may impose any condition of supervised release it deems appropriate so long

as it comports with the factors enumerated in § 3553(a)”).

      Similar to this case, Guzman concerned a Mexican citizen, who illegally re-

entered the United States after being deported. He contended on appeal his 3-year

term of supervised release was unreasonable, because it included strict

extraterritorial reporting requirements. Since the government would know of his

deportation, he argued the reporting requirement was not reasonably related to the

§ 3553(a) factors. We determined his reporting was not imposed to confirm

Guzman had been deported but to ensure he remained in Mexico by allowing his

probation officer to monitor his location. Guzman, 558 F.3d at 1265. We

concluded the reporting requirement to verify Guzman remained in Mexico was

reasonably related to several § 3553(a) factors: his unlawful re-entry crime,

deterrence from illegally re-entering the United States again, and protection for the

public from his future attempt to re-enter this country unlawfully. Id.; see 18

U.S.C. § 3553(a)(1), (a)(2)(B)-(C). This rationale applies to Garza-Mendez’s same

contentions.

      To the extent Garza-Mendez argues that 3 years of reporting his location

from Mexico is overly focused on deterrence, his re-entry into the United States a

month after his deportation in 2011 belies his argument. At sentencing, the judge

told Garza-Mendez: “I mean, you have to be deterred. We tried to deter you once

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by removing you and telling you not to come back. That didn’t work, so we have

to do something more now.” R3 at 171. Garza-Mendez’s reporting requirement

from Mexico comports with the § 3553(a) factors, particularly since this is his

second deportation from the United States.

      AFFIRMED.




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                                                                         APPENDIX



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                SGMCC o              30   IO
    CreS dmi                         30 k 0 V.J'                                          The emsndet tab. srved on           RO8ATIOH 0 SUSPE1JStON
              anUe tanIrtce of contlasment may bs vod,               to the condUt,na sil oul h.n. on         ROSATIOW 0 SUSPENSION
      0 Payment of RE311TUTION (see attached *r,)            F1n. In ø. atrcunt of s3D' pp_Piy b_________
      PLUS appHcabt. szctrnrgas.
     -                                                     -
                      -.                                      - CONO4TIONSOP t*OBATIO$OSUSPENStON
     (1) Zou must aNy all twa a,d avoid persons a            reputable or hsankU character.
       y .Ef'You must avoid kus1ous and 4daug habitI .sp.ctsRy alcohol and nvtcts ursu lmt4tøy               erted.
     (3) Ø'You must wix (althIUUy and not ehane yotscunent raIdence or leave Its )uthdlctan of the Co 1houJ the p                     tlhs Court
    (4) 0 You muSt eport to yow Pm otlo,i OIflce as *ecied and .50w your Probdan Ofltc.r to 'MIt ypu yihs •iydu are                   -
    (5) g<fOu must pay t flno* and redUtuUOn thfrt the tlmo spd$ed by your Probation Officer..
   () ØYou rma( pay a Pmbôffon SupaMtk,n Fea of S30 ouch month to Prolualdnal Probation SoMcu,tnc. I Ccms pioAi rer*u convac.
   (1)       YoumtitpayaCt1meVictlm.C0mparsauonProgramIo,OfS9.O0caChmOnth.                                         ''.'    ti
   (      0 You must pwfonrn _____ louts of COMMU.IITY SERVICE at ro tiec5on of your Ptobzlon OflTc..
         0 You must p1om             _ days of COMtvLlftfI? SERVICE throigt thi GCCI. REPORT______________________________
             Por otlontattan. You must pays Supervtslon Fos at $15 plus a ditty fee daferminod by ill rogremWecloi.
   (10)0 You q4st prove your atterldasrGl at 0MCOhoti Anonymous prO $'lercotic, Anonyoous __ meet!ns PER WEEK (or_ consacutlto weeks.
  (11)      You must prove you attended a still approved school for 0 St* iiandsed Rk &cilon 0 D.fsnsh. Di-tvin
  (12)0 You must p.onda proof of your e uittor and Inealmenl torn mental health                substance abjse at the GRN Msnlat H*Ilth UnL
  (13)Oycu ntIS not use otouftol or naroattcs anti you must submIt so tandOm all drug a                                   *

 (14) [ou must h*v              es4-4Il-lO VIOLESff contact wttis.                      see-4_TI Ct- 1LJ.çj
  (15) You must provIde proof of attondanc, wd completion of fcerilfed finrtly lence irrterntlon pcunam 0 anger                   oi,nt      jerti4tion
  (I (I) Q ppaar oelore thu Coust an    ______________            at - AJ& I prot completion at the lema of this sentincs or
 cc r; Qyau rimE 0 'st' .ss Pubttcatfon lee             0 Instil fon 'tt&o                 0 ta torfetturt                        -

 (13) [3'S! fl(lls. surchar;eL spotaS candlUons ot tho sWtPce a. mit/completed, probation may become EB'non4,po,drs                   Cs5rj.i
 (19)0 Attend ha Victim Impact Panel 0 scheduted_                                   30 p.m.Q as scttdt4ed by pobatbn. Psy a
 (20)0
 (21)Q
 The Osfendant i *ath•r advised that tit. Court may. at any lime. r.volte any conc5Xtci at Its ØtobeItoa andl or ftctcsrs the teluiu
 Oatondanl IhIS ItI subject to arrest (or vtolalba Olin), or4ftin of probation twi.i't granted. If watt pmoba1n II r*voted, at. Cowl uui
 sentenco which u o$glnslly Imposed. Or any p0111011 ato,*of, kc Ilso manner pra*'ldd by law after dint,dtn lbarekom lice ount of Once It
 On probation.

 Ot'ctxIa:il 5$ rcpcasntad by .ttomoy_

Coumr Rppoaar        I_,jrt t(t ,4_i'Cj,,_     p_.                                 p*lt




WhITE- Ceck Yattow. SolIcitor PneA Probation Stul - Dc(enso XIomay                                                 cthow ahO Fm Iti f(CR (30) July 2004
                                                                                                                 Son!ø, Judge
                                                                                                                 state of Googla
                                                                                                                 By DOStgraUor,
             Case: 12-13643     Date Filed: 11/15/2013    Page: 19 of 24


MARTIN, Circuit Judge, concurring in part and dissenting in part:

      I respectfully dissent from Part II.A of the Majority Opinion, which holds

that Mr. Garza-Mendez’s family violence battery conviction is an “aggravated

felony” for purposes of United States Sentencing Guidelines (USSG)

§ 2L1.2(b)(1)(C). Unlike the Majority, I believe a proper application of our

precedent requires the District Court to defer to the clarification order issued by the

Gwinnett County State Court, which clearly states that Mr. Garza-Mendez’s

sentence for his family violence battery conviction was 12 months of probation,

with the first 30 hours served in custody, not 12 months of incarceration. State v.

Garza-Mendez, No. 2007-D-04212-S5 (Ga. Gwinnett Cty. Ct. Apr. 17, 2012)

(Order Clarifying Sentence). Deferring to this order, I would find that Mr. Garza-

Mendez’s conviction does not constitute an “aggravated felony” because he did not

receive a “term of imprisonment” of at least one year. See United States v.

Guzman-Bera, 216 F.3d 1019, 1021 (11th Cir. 2000) (holding 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’”) (quoting United

States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999)).

      I also write separately, however, to express my concerns about the

Majority’s astonishing refusal to defer to the State Court’s order. The failure to do

so is not consistent with the longstanding tradition in this Court of promoting


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             Case: 12-13643     Date Filed: 11/15/2013    Page: 20 of 24


comity between state and federal courts in criminal cases. In the vast majority of

criminal cases, deference to comity works to the detriment of federal defendants

because it bars them from challenging their State Court convictions, which are

used to enhance their federal sentences. See, e.g., United States v. Phillips, 120

F.3d 227, 231 (11th Cir. 1997) (“Collateral attacks on prior convictions are

allowed in federal sentencing proceedings in one narrow circumstance only: when

the conviction was obtained in violation of the defendant’s right to counsel.”);

United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995) (“Generally, we do

not allow a defendant to collaterally attack in the sentence proceeding convictions

being used to enhance his sentence.”).

      This case, of course, presents one of the rare instances in which showing

deference and comity to the State Court would benefit a federal defendant. But

here, in contrast to our usual practice, the Majority shows no comity and no

deference to an order of the State Court clarifying the terms of the sentence that it

imposed on Mr. Garza-Mendez. The Majority’s refusal to credit the State Court’s

clarification of its own sentence is perplexing, especially given that, in my

experience, we do not scrutinize State Court judgments in the same way when they

result in a harsher sentence for criminal defendants. See, e.g., United States v.

Sanchez, 586 F.3d 918, 931 (11th Cir. 2009) (“Except for convictions that are

presumptively void, a defendant may not use a sentencing proceeding to mount a


                                          20
              Case: 12-13643       Date Filed: 11/15/2013      Page: 21 of 24


collateral attack on a prior conviction.”); United States v. Brand, 163 F.3d 1268,

1275 (11th Cir. 1998) (“Brand’s collateral attack of the state court order is not

cognizable.”).

       The Majority’s efforts to justify its lack of comity are not persuasive.

Although the Majority correctly points out that the state judge who issued the

clarification order was not the sentencing judge,1 it cannot cite to any authority

suggesting that an order entered under such circumstances is entitled to less

deference than any other state court order. 2 See Kremer v. Chem. Constr. Corp.,

456 U.S. 461, 462–63, 102 S. Ct. 1883, 1887–88 (1982) (“As one of its first acts,

Congress directed that all United States courts afford the same full faith and credit

to state court judgments that would apply in the State’s own courts.”). Neither can

the Majority explain why the Gwinnett County State Court is not in the best

position to interpret and explain whether it imposed on Mr. Garza-Mendez a

sentence of imprisonment or probation. We should accept Judge South’s Order

Clarifying Sentence to be what she said it is—an order clarifying the original terms

of Mr. Garza-Mendez’s sentence.



1
  A fact not relied upon, or even mentioned by the District Court in its ruling enhancing Mr.
Garza-Mendez’s sentence.
2
  Indeed, given Judge South’s extensive experience, she was well-equipped to interpret Mr.
Garza-Mendez’s sentence. Publicly available records indicate that Judge South has served as a
Judge of the State Court of Gwinnett County since 2001. Prior to joining the bench, Judge South
served on the Gwinnett County Magistrate Court and as a prosecutor in the Gwinnett County
District Attorney’s Office.
                                              21
              Case: 12-13643     Date Filed: 11/15/2013    Page: 22 of 24


      The Majority also suggests that the State Court’s clarification order need not

be given any weight because it involves the interpretation of a “state-sentence form

as to federal law.” This argument, however, is simply wrong on its face. Nowhere

does the State Court’s clarification order reflect an attempt to apply federal law in

determining how the Sentencing Guidelines should be applied to Mr. Garza-

Mendez in this case. All that the order purports to do is clarify that Mr. Garza-

Mendez’s sentence for his family violence battery conviction was 12 months of

probation, with the first 30 hours to be served in custody, rather than 12 months of

incarceration. Even though this clarification may have the practical effect of

resolving the aggravated felony enhancement issue in this case, the record before

us is utterly devoid of any indication that the State Court attempted to answer any

questions of federal law in its order. Rather, all of its determinations were either

factual or based on state law, and we owe deference to these determinations. See

Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997)

(“State courts, not federal courts, should be the final arbiters of state law.”).

      Finally, the Majority implies that the State Court’s order is not reliable

because it was “strategically timed” by Mr. Garza-Mendez’s attorney “for the

purpose of preventing an 8-level enhancement.” But I see no reason at all why the

State Court’s order should be given any less deference because it was obtained by

Mr. Garza-Mendez’s attorney. Certainly we give no less deference to State Court


                                           22
             Case: 12-13643     Date Filed: 11/15/2013    Page: 23 of 24


sentencing orders obtained and presented by prosecutors. We also know that, as a

general rule, federal criminal defendants are not permitted to collaterally attack a

prior State Court conviction in federal court. See Custis v. United States, 511 U.S.

485, 496–97, 114 S. Ct. 1732, 1738–39 (1994) (holding that with the sole

exception of convictions obtained in violation of the right to counsel, defendant has

no right under the Armed Career Criminal Act or the Constitution to collaterally

attack a prior State Court conviction at his federal sentencing proceeding). This

being the case, the only way that Mr. Garza-Mendez could attack or clarify his

prior State Court conviction was to go back to the State Court that imposed it. See

United States v. Medlock, 12 F.3d 185, 189 (11th Cir. 1994) (“Our system of

federalism does not envision federal sentencing courts sitting as open-door review

boards at the beck and call of defendants who have failed to avail themselves of

well-established procedures for direct appeal or habeas scrutiny.”). It is hard to

imagine why the Majority penalizes Mr. Garza-Mendez for going exactly to the

place we tell criminal defendants to go when they wish to clarify their State Court

judgments.

      I close by emphasizing again that the Majority’s lack of deference here is

striking because, in my experience, it has always been the practice of this Court to

exercise great deference to State Court judgments in criminal cases, especially

when comity bars defendants from obtaining relief in federal court. Surely it is


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             Case: 12-13643     Date Filed: 11/15/2013    Page: 24 of 24


true that equal justice requires us to show deference and comity to State Court

judgments in all situations, whether it serves to help or hurt a defendant in our

Court. Indeed, it must be our charge to prevent the principle of comity from being

reduced to a mere tool that works only to the disadvantage of criminal defendants.

Cf. United States v. Early, 686 F.3d 1219, 1223–25 (11th Cir. 2012) (Martin, J.,

concurring) (observing that this Court typically upholds any upward variance

above the Sentencing Guidelines range but rarely shows deference to a sentencing

court’s decision to grant a downward variance).

      I respectfully dissent to the denial of relief to Mr. Garza-Mendez with

respect to the use of his 2007 family violence battery conviction to enhance the

federal sentence we consider here.




                                          24
