                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                            FILED
                             ________________________                 U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                            JULY 05, 2001
                                     No. 00-13456                        THOMAS K. KAHN
                               ________________________                       CLERK

                       D. C. Docket No. 00-00003-CR-01-WCO-2

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                             versus

GERONIMO AYALA-GOMEZ,
a.k.a. Momo,

                                                                   Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________
                                    (July 5, 2001)


Before CARNES, COX and NOONAN*, Circuit Judges.


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

       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.

                                              2
       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.” 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

       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.

                                                3
(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)


                                         4
(directly imposed sentence of probation, as opposed to one substituted for an imposed

prison term, does not 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


                                          5
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, 381 S.E.2d 399, 400 (Ga. Ct. App. 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


                                            6
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”).




                                          7
      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

(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.”




                                           8
      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.


                                            9
Ayala’s sentence is accordingly affirmed.

AFFIRMED.




                                 10
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 (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


                                           11
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


                                            12
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 (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 (1978).

        I respectfully dissent.


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