             Case: 19-12979    Date Filed: 12/19/2019   Page: 1 of 6


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 19-12979
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 4:19-cr-00016-WMR-WEJ-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

IGNACIO ORTIZ-CORREA,

                                                            Defendant-Appellant.

                         ________________________

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

                              (December 19, 2019)

Before WILLIAM PRYOR, JILL PRYOR and MARCUS, Circuit Judges.

PER CURIAM:

      Ignacio Ortiz-Correa appeals his 12-month prison sentence, imposed for

illegally reentering the United States after having been previously deported. On

appeal, he argues that the district court imposed a procedurally unreasonable
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sentence because, in calculating his offense level, it applied an eight-level

enhancement under U.S.S.G. § 2L1.2(b)(3)(B) after finding that Ortiz-Correa was

previously convicted of a crime for which he received a two-year sentence. After

thorough review, we affirm.

      In the context of the Sentencing Guidelines, we review purely legal questions

de novo and the district court’s factual findings for clear error. United States v.

Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). “For a finding to be clearly

erroneous, [we] must be left with a definite and firm conviction that a mistake has

been committed.” Id. (quotations omitted).

      A defendant convicted of illegally reentering the United States receives an

eight-level enhancement if the defendant was ordered removed and was

subsequently convicted of a crime for which the sentence imposed was two years or

more. U.S.S.G. § 2L1.2(b)(3)(B). A defendant convicted of illegally reentering the

United States receives a four-level enhancement if the defendant was ordered

removed and was subsequently convicted of a crime for which the sentence imposed

was less than one year and one month. Id. § 2L1.2(b)(3)(C)-(D).

      The term “sentence imposed” carries the same meaning as “sentence of

imprisonment” in § 4A1.2(b) and that section’s Application Note 2. Id. § 2L1.2,

comment. (n.2). “[S]entence of imprisonment” is defined as: “(1) . . . a sentence of

incarceration and refers to the maximum sentence imposed. (2) If part of a sentence


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of imprisonment was suspended, ‘sentence of imprisonment’ refers only to the

portion that was not suspended.” Id. § 4A1.2(b). Furthermore,

      [t]o qualify as a sentence of imprisonment, the defendant must have
      actually served a period of imprisonment on such sentence . . . . For the
      purposes of applying §4A1.1(a), (b), or (c), the length of a sentence of
      imprisonment is the stated maximum (e.g., in the case of a determinate
      sentence of five years, the stated maximum is five years; in the case of
      an indeterminate sentence of one to five years, the stated maximum is
      five years; in the case of an indeterminate sentence for a term not to
      exceed five years, the stated maximum is five years . . . . That is,
      criminal history points are based on the sentence pronounced, not the
      length of time actually served. See §4A1.2(b)(1) and (2).

Id. § 4A1.2, comment. (n.2) (citation omitted).

      Under Georgia law, a sentencing judge has the power to “suspend or probate

all or any part of the entire sentence under such rules and regulations as the judge

deems proper” subject to exceptions not applicable to this case. O.C.G.A. § 17-10-

1(a)(1). We have recognized that “suspension” under Georgia law is ambiguous

and, thus, the federal meaning of the word applies. See United States v. Ayala-

Gomez, 255 F.3d 1314, 1319 (11th Cir. 2001) (holding that a state court sentence of

five years’ imprisonment where the defendant was only to serve eight months before

being released on probation was a suspended sentence for purposes of a federal

immigration statute). We held that the federal meaning of suspension was “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” on probation. Id. at 1318-19.



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      While suspension and probation are similar in Georgia, they are distinct

because a probation officer enforces conditions of probation whereas the sentencing

court enforces conditions of suspension. Id. at 1318. A suspended sentence “is not

subject to the panoply of rules surrounding probation.” Id. Where a suspended

sentence is revoked, “the effect . . . is to require service of the unexpired portion

thereof.” Lester v. Foster, 63 S.E.2d 402, 402 (Ga. 1951) (quotation omitted). A

suspended sentence may be revoked “after the time the sentence by its terms was to

run had expired.” Daniel v. Whitlock, 149 S.E.2d 79, 79-81 (Ga. 1966) (quotation

omitted).

      Here, the district court did not clearly err in applying an eight-level

enhancement because it properly found that Ortiz-Correa had been convicted of a

crime for which a two-year sentence was imposed. Section 2L1.2(b)(3) mandates

either an eight-level enhancement or a four-level enhancement depending on what

sentence was imposed for Ortiz-Correa’s 2009 drug offense. Section 4A1.2 states

that a sentence of imprisonment refers to the maximum sentence imposed. Here, the

state court imposed a sentence of two years’ imprisonment, which was the maximum

sentence imposed. Although Ortiz-Correa served less than two months in prison,

the focus is not on the time served but rather the sentence that was pronounced,

which in this case was two years’ imprisonment. See U.S.S.G. § 4A1.2, comment.




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(n.2). Thus, the sentence imposed was two years’ imprisonment and the eight-level

enhancement mandated by § 2L1.2(b)(3)(B) would apply.

      As for Ortiz-Correa’s argument that his two-year sentence was suspended

when he was deported, we disagree. While the state court observed that the sentence

would be tolled upon Ortiz-Correa’s deportation, the court added that the sentence

would be reactivated upon his reentry to the United States. That language reveals

that the state court did not intend to excuse Ortiz-Correa from spending two years in

prison because, under the plain meaning of the state court’s sentence, if Ortiz-Correa

reentered the United States, even after ten years, he would serve at least the

remainder of his two-year sentence in prison. See Whitlock, 149 S.E.2d at 79-81.

In any event, the state court did not know for certain that Ortiz-Correa would be

deported because his deportation was at the Attorney General’s discretion, meaning

that the state court sentenced him with the knowledge that he could spend the full

two years in prison. See United States v. Romeo, 122 F.3d 941, 944 (11th Cir. 1997)

(holding that the United States Attorney General has the discretion to deport an alien

from the United States, and a court generally lacks the authority to order

deportation); see also Palciauskas v. U.S. Immigration & Naturalization Serv., 939

F.2d 963, 968-69 (11th Cir. 1991). The state court’s order that Ortiz-Correa’s

sentence would be reactivated if he was deported and returned to the country thus

indicates that the state court did not impose a suspended sentence.


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      That Ortiz-Correa was to be placed on eight years’ probation after spending

two years in prison further indicates that a suspended sentence was not imposed.

Georgia law makes clear that probation and suspension, although similar, are

separate mechanisms. See Ayala-Gomez, 255 F.3d at 1318; Hughes v. Town of

Tyrone, 440 S.E.2d 58, 59 (Ga. 1994) (“A suspended sentence is not the same as

being put on probation.”). Accepting Ortiz-Correa’s interpretation of the sentence,

he received both a suspended sentence and also a probated sentence, which Georgia

law does not allow. See O.C.G.A. § 17-10-1(a)(1) (stating that a judge can suspend

or probate a sentence); Jones v. State, 269 S.E.2d 77, 77-79 (Ga. 1980) (“A trial

judge is granted power and authority to suspend or probate a determinate sentence.

He does not have authority to do both.” (citation and quotations omitted)). Because

Georgia law does not allow a state court to impose both probation and a suspended

sentence, Ortiz-Correa could not have received a suspended sentence.

      In short, the eight-level enhancement was proper because Ortiz-Correa

received a two-year sentence imposed for his 2009 drug conviction, and that

sentence was not suspended. Accordingly, we affirm.

      AFFIRMED.




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