                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 16a0232p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 UNITED STATES OF AMERICA,                               ┐
                                   Plaintiff-Appellee,   │
                                                         │
                                                         │
        v.                                                >      No. 15-6035
                                                         │
                                                         │
 WILMER CANELAS-AMADOR,                                  │
                                Defendant-Appellant.     │
                                                         ┘
                          Appeal from the United States District Court
                       for the Eastern District of Tennessee at Knoxville.
                   No. 3:15-cr-00053-1—Thomas W. Phillips, District Judge.

                            Decided and Filed: September 14, 2016

               Before: SILER, BATCHELDER, and GIBBONS, Circuit Judges.

                                      _________________

                                          COUNSEL

ON BRIEF:    Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Brooklyn Sawyers, UNITED
STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
                                      _________________

                                           OPINION
                                      _________________

       ALICE M. BATCHELDER, Circuit Judge. As anyone who watches detective shows on
television can tell you, it is rarely good news when “the feds” take over on a case—they are
generally portrayed as likely to bungle the whole thing, permitting the guilty party to get off
scot-free. This trope is certainly a gross exaggeration. But at least in this case there may be a




                                                1
No. 15-6035                    United States v. Canelas-Amador                        Page 2


grain of truth to it, albeit in circumstances involving the less-than-thrilling minutiae of
immigration law and the federal sentencing guidelines.

         Six years ago Tennessee law enforcement officials arrested illegal immigrant Wilmer
Canelas-Amador and charged him in Tennessee state court with felony aggravated assault and a
few related misdemeanors. The record before us does not contain any findings of fact by the
Tennessee court or any hearing transcripts, but it does include a document entitled “Waiver of
Trial by Jury and Acceptance of Plea of Guilty,” which Canelas-Amador signed and the
Tennessee trial court approved in a form order.

         Before the trial court could enter judgment or pronounce a sentence, however, federal
immigration authorities took Canelas-Amador into custody, moving him out of Tennessee and
eventually deporting him back to Honduras. When Canelas-Amador failed to appear for a
presentence interview, the Tennessee trial court (which was, apparently, unaware that Canelas-
Amador had been taken out of state by immigration authorities) issued a capias (i.e., a bench
warrant) ordering law enforcement to bring him into custody, presumably to sit for the interview.
Not surprisingly, nothing came of the capias, and the matter appears to have lain dormant ever
since.

         Soon after being deported, Canelas-Amador reentered the U.S. illegally and was
promptly arrested. He pled guilty to illegal reentry in federal court in Texas and was sentenced
to one year of imprisonment. Then, in 2015, he was again arrested, this time in Tennessee, and
was charged in federal court in Tennessee with illegal reentry, to which he pled guilty. This
time, however, the district court gave him a much longer sentence: 57 months’ imprisonment,
basing that sentence in large part on its 57–81 month guideline-range calculation. At the heart of
that calculation was the district court’s determination, over Canelas-Amador’s objection, that the
state court order accepting his “Waiver of Trial by Jury and Acceptance of Plea of Guilty”
constituted a “conviction for a felony that is . . . a crime of violence,” mandating a sixteen-point
No. 15-6035                        United States v. Canelas-Amador                               Page 3


enhancement under the guideline provision applicable to Illegal Reentry.                             U.S.S.G.
§2L1.2(b)(1)(A)(ii).1

        As the district court noted, § 2L1.2(b)(1)(A)(ii) of the guidelines does not define
“conviction,” nor have we supplied any controlling interpretation of that term. The district court
therefore looked to cases from outside of this circuit, concluding that the Immigration and
Naturalization Act (INA), specifically 8 U.S.C. § 1101(a)(48)(A), provided the proper definition
of “conviction,” since the crime of illegal reentry is codified in the INA at 8 U.S.C. § 1326.

        Under § 1101(a),

        The term “conviction” means, with respect to an alien, a formal judgment of guilt
        of the alien entered by a court or, if adjudication of guilt has been withheld,
        where—
            (i) a judge or jury has found the alien guilty or the alien has entered a plea of
                guilty or nolo contendere or has admitted sufficient facts to warrant a
                finding of guilt, and
            (ii) the judge has ordered some form of punishment, penalty, or restraint on
                 the alien’s liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A).

        The district court concluded that the state court order accepting the guilty plea was “a
formal judgment of guilt and is therefore a conviction for purpose of Sentencing Guideline
§2L1.2(b)(1)(A).” This calculation, together with that court’s criminal-history determination,
resulted in the aforementioned guideline range of 57–81 months’ imprisonment.                             Sans
enhancements, Canelas-Amador would have been facing a guideline range of two to eight
months’ imprisonment.




        1
          Relatedly, the district court found—again, over Canelas-Amador’s objection—that the Presentence Report
appropriately concluded that three criminal history points were warranted because Canelas-Amador had been
sentenced by the Tennessee state court and had illegally reentered the U.S. “while under a criminal justice
sentence.” These conclusions were incorrect. As mentioned above, the Tennessee trial court never sentenced
Canelas-Amador, nor was the capias issued for a “probation violation,” as the district court seems to have
concluded. Compare Moore v. State, 578 S.W.2d 78, 81 (Tenn. 1979) (“Under [Tennessee] criminal procedure, a
capias is [an] intermediate process having the sole purpose of securing the presence of the defendant.”), with
U.S.S.G. § 4A1.1(c), (d).
No. 15-6035                   United States v. Canelas-Amador                       Page 4


       This appeal presents us with a single question: was the district court right that the state
court order accepting the guilty plea was a conviction for the purposes of § 2L1.2(b)(1)(A)(ii)?
On the district court’s own reasoning—which, tellingly, the government does not defend in this
appeal—the answer is straightforward: no, a plea agreement approved in a form order falls well
short of “a formal judgment of guilt” under §1101(a)(48)(A).

       True, we give words “their ordinary, contemporary, common meaning” unless there’s a
good reason not to, Perrin v. United States, 444 U.S. 37, 42 (1979), and the word “judgment” is
often understood to mean any formal judicial decision, see, e.g., Random House Webster’s
Unabridged Dictionary 1036 (1987) (defining “judgment” as “a judicial decision given by a
judge or court”); Webster’s Third International Dictionary 1223 (1986) (defining “judgment” as
“a formal decision or determination given in a cause by court of law or other tribunal”). Legal
dictionaries define the term more narrowly, emphasizing the finality of the decision, see, e.g.,
Black’s Law Dictionary 970 (10th Ed. 2014) (defining “judgment” as a “court’s final
determination of the rights and obligations of the parties in a case [including] any order from
which an appeal lies” (emphasis added)), but this is not without exceptions, see Ballantine’s Law
Dictionary 680 (3d ed. 1969) (emphasizing finality, but also noting that “judgment” is
“[s]ometimes synonymous with decision”).

       The initial plausibility of the district court’s construction does not bear up under close
scrutiny, however. The sort of judgment spoken of in § 1101(a)(48) is a criminal judgment.
When used in this setting, the term refers to something much more definite that simply any
ruling by a court. As the Supreme Court has put it: “Final judgment in a criminal case means
sentence. The sentence is the judgment.” Berman v. United States, 302 U.S. 211, 212 (1937).
Indeed, the phrase “judgment of guilt” bears a striking resemblance to the technical legal phrase
“judgment of conviction”—which, according to both Federal Rule of Criminal Procedure 32(k)
and Black’s Law Dictionary, is a written record setting “forth the plea, the jury verdict or the
court’s findings, the adjudication, and sentence.” Fed. R. Crim. P. 32(k); accord Black’s Law
Dictionary 972 (10th Ed. 2014).

       This similarity has prompted our colleagues on the Second, Third, Fifth, and Eleventh
Circuits to conclude that Rule 32(k) sets forth the correct definition of “formal judgment of
No. 15-6035                        United States v. Canelas-Amador                              Page 5


guilt.” See Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 629 F.3d 1223, 1226–27 (11th Cir.
2011); Singh v. Holder, 568 F.3d 525, 530 (5th Cir. 2009); Puello v. Bureau of Citizenship
& Immigration Servs., 511 F.3d 324, 328–29 (2d Cir. 2007); Perez v. Elwood, 294 F.3d 552, 562
(3d Cir. 2002). We agree. The only difference between the two phrases—the substitution of
“guilt” for “conviction”—strikes us as immaterial. Indeed, Rule 32(k) sets “conviction” in
opposition to “not guilty.” See Fed. R. Crim. P. 32(k). And the key point, as the Second Circuit
noted in Puello, is that “both terms center on the action the court must take to formalize the
judgment,” 511 F.3d at 329, a point underscored by § 1101(a)(48)(A)’s inclusion of the word
“formal.”

        Further, if “formal judgment of guilt” just means a court order of some sort, why did
Congress bother to include the alternative definition? Under the district court’s broad reading, a
mere finding of guilt or entry of “a plea of guilty” would be sufficient in all circumstances,
regardless of whether formal “adjudication of guilt ha[d] been withheld” or the court had
imposed any “punishment, penalty, or restraint on the alien’s liberty.” Such a construction is
dubious, to say the least. See Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of
construction ordinarily suggest that terms connected by a disjunctive be given separate
meanings, unless the context dictates otherwise.”); Mackey v. Lanier Collection Agency & Serv.,
Inc., 486 U.S. 825, 837 (1988) (presumption against redundancy). We therefore conclude that
there was no “formal judgment of guilt” on the aggravated assault charge because the Tennessee
court never sentenced Canelas-Amador for the aggravated assault and those truncated
proceedings do not constitute an adjudication under Rule 32(k). See Mejia Rodriguez, 629 F.3d
at 1227.2

        The government contends that this court is nevertheless bound to affirm the district
court’s guideline calculation based on our decision in United States v. Pritchett, 749 F.3d 417,
425–26 (6th Cir. 2014). That case held, in relevant part, that a defendant’s prior guilty plea to a
state-law offense was a “prior conviction” under 21 U.S.C. § 841, despite the defendant’s

        2
           This is not, as the district court rightly concluded, a circumstance where “adjudication has been
withheld”—the adjudication simply never happened. And even if it had been withheld, there is nothing in the
record suggesting that the Tennessee trial court “ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A).
No. 15-6035                      United States v. Canelas-Amador                     Page 6


“successful completion of [a] probationary sentence and the expungement of [the defendant’s]
record.” Id. It based this conclusion, in part, on the fact that, “in some circumstances, a guilty
plea alone [is] enough to constitute a conviction.” Id. at 424 (brackets in original; internal
quotation marks omitted). And while we have stated, in an unpublished (and thus nonbinding)
opinion, that a guilty plea is always enough, United States v. Hamad, 575 F. App’x 660, 661 (6th
Cir. 2014) (unpublished) (per curiam) (quoting Pritchett, 749 F.3d at 424), this is not, as our
discussion of §1101(a)(48)(A) makes clear, an accurate summary of federal law. Contrary to
the government’s contentions, Pritchett thus does not decide this case. But it does raise an
important question: is this one of those circumstances where a guilty plea alone is sufficient? Put
another way, was the district court right in concluding that § 1101(a)(48)(A) provides the proper
definition?

        The government says “no”—the proper definition of “conviction” is found, not in § 1101,
but in the guidelines themselves, specifically in § 4A1.2(a)(4), which governs criminal history
computation. That section provides that “‘Convicted of an offense,’ for the purposes of this
provision, means that the guilt of the defendant has been established, whether by guilty plea,
trial, or plea of nolo contendere.” U.S.S.G. § 4A1.2(a)(4). Under this approach, there is no
question that a guilty plea alone is sufficient.

        So, which definition applies? As it turns out, there is an (apparently unacknowledged)
circuit split on this question. The Fourth, Fifth, Tenth, and Eleventh Circuits have looked to
§1101. See United States v. Medina, 718 F.3d 364, 368 (4th Cir. 2013) (“Given that § 2L1.2—
unlike § 4A1.2—relates specifically to an immigration offense, we conclude . . . that the
definition of conviction in § 1101 must control.”); United States v. Ramirez, 367 F.3d 274, 277
(5th Cir. 2004); United States v. Anderson, 328 F.3d 1326, 1328 (11th Cir. 2003); United States
v. Zamudio, 314 F.3d 517, 521 (10th Cir. 2002). But the First, Second, and Ninth Circuits have
applied the definition set forth in §4A1.2(a)(4). See United States v. Mendez-Sosa, 782 F.3d
1061, 1063 (9th Cir. 2015) (“Chapter Four of the sentencing guidelines, and not the Immigration
and Nationality Act, provides the proper definition of ‘conviction.’”); United States v. Campbell,
167 F.3d 94, 98 (2d Cir. 1999); United States v. Cuevas, 75 F.3d 778, 782 (1st Cir. 1996).
No. 15-6035                     United States v. Canelas-Amador                        Page 7


       The reasoning in these cases is very thin. And it is not surprising that the split has gone
unnoticed since, in most circumstances, the disagreement is irrelevant. All of the cases cited
above analyzed whether diversionary sentences or expungements count as convictions for the
purposes of § 2L1.2. The answer to that question is that they do, regardless of which definition
applies. In the unusual circumstances of this case, however, the difference matters a great deal.

       The guidelines are designed to ensure that the penalties provided for in federal criminal
statutes are applied in a just, uniform, and predictable way. Thus, while § 1101(a) defines terms
only insofar “[a]s used in this chapter,” we believe that Canelas-Amador is correct in saying that,
all things being equal, it makes sense to interpret a term used in both a criminal statute and in the
guidelines provisions applicable to that statute consistently and with reference to the statutory
definition. On the other hand, if the guidelines themselves provide a specific definition, it makes
sense to follow that, even in the face of a conflicting statutory definition. See United States v.
Pimentel-Flores, 339 F.3d 959, 963–64 (9th Cir. 2003).

       What makes this case difficult is that it falls somewhere in between these two situations.
Section 4A1.2(a)(4) is part of the guidelines of course, but it does not purport to provide a
comprehensive definition for all guidelines provisions. See U.S.S.G. § 4A1.2(a)(4) (“‘Convicted
of an offense,’ for the purposes of this provision means . . . .” (emphasis added)). Nevertheless,
the government has a point in saying that it would be odd to define “conviction” one way for
computation of criminal history—§ 4A1.2—and another way for computation of the impact
criminal history has on the offense level—§ 2L1.2. Similarly, though the comments to §2L1.2
do define some terms by making explicit reference to § 4A1.2(a)(4), they at other points look to
§1101(a) for definitions.    The comments for the two sections, moreover, include slightly
different definitions of “crime of violence.”

       The circumstantial evidence is thus far from decisive. And while we think that, without a
clear statement in the guidelines to the contrary, the statutory definition is generally preferable,
there remains a not insignificant doubt as to which definition should apply here. When, in
criminal cases, the tools of statutory interpretation do not resolve a question, where significant
doubt or uncertainty lingers, we must construe the provision in favor of the defendant.
See Chapman v. United States, 500 U.S. 453, 463 (1991). This principle—the rule of lenity—
No. 15-6035                     United States v. Canelas-Amador                          Page 8


has roots deep within the Anglo-American legal tradition, and it “embodies the instinctive
distastes against men languishing in prison unless the lawmaker has clearly said they should.”
United States v. Bass, 404 U.S. 336, 348 (1971) (internal quotation marks omitted). As Chief
Justice John Marshall explained nearly two centuries ago,

       The rule that penal laws are to be construed strictly, is perhaps not much less old
       than construction itself. It is founded on the tenderness of the law for the rights of
       individuals; and on the plain principle that the power of punishment is vested in
       the legislative, not in the judicial department. It is the legislature, not the Court,
       which is to define a crime, and ordain its punishment.

United States v. Wiltberger, 18 U.S. 76, 95 (1820).

       The guidelines are not statutes, of course, but they are promulgated by the United States
Sentencing Commission pursuant to federal statute, and they play an important, often central,
role in determining how long someone will languish in prison. Thus, as we have previously
stated, we may “apply the rule of lenity to matters relating to the Sentencing Guidelines.” United
States v. Boucha, 236 F.3d 768, 776 (6th Cir. 2001). Applying that rule here, we hold that the
more restrictive definition set forth in § 1101(a)(48)(A) applies. Under that definition, Canelas-
Amador was never convicted of aggravated assault by the Tennessee state court, and we
therefore hold that that the district court erred in calculating the guidelines range.

       It might be argued that this conclusion elevates form above substance—he pled guilty to
the crime after all! And, in a sense, our decision today does do just that. But it does so for the
very good reason that form is of paramount importance in the criminal law. As with the
vagueness doctrine, the rule of lenity sets an outer limit, checking the tremendous power of the
state by requiring it to act with a minimum level of clarity and transparency when it wishes to
deprive people of their liberty. It reflects our nation’s solemn commitment to the principle that it
is better to not punish those who have done wrong—or, in cases like this one, to punish them
more lightly—than to countenance legal provisions so foggy that they fail to provide fair notice
and thus, ultimately, leave the rights of the innocent unprotected. See The Federalist No. 62, at
323–24 (James Madison) (The Gideon ed., George W. Carey & James McClellan eds., Liberty
Fund 2001) (“It will be of little avail to the people, that the laws are made by men of their own
choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot
No. 15-6035                    United States v. Canelas-Amador                      Page 9


be understood . . . . Law is defined to be a rule of action; but how can that be a rule, which is
little known and less fixed.” (emphasis added)).

       Finally, the government’s contention that Canelas-Amador “seems to argue that because
he did not comply with his duty to appear in state court for a presentence interview, he must now
be relieved of the burdens of that criminal conduct to which he pleaded guilty,” gets things
exactly backwards. As we noted at the outset, it was the action of the federal government, not
Canelas-Amador, that resulted in his removal from the state before a formal judgment of
conviction could be entered.     Its desire to see the immigration laws executed promptly is
understandable—even quite commendable—but it has no one to blame but itself for the
consequences of having in this instance acted too quickly.

       The district court’s incorrect guidelines-range calculation was a significant procedural
error. See United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007). And we therefore reverse
and remand to the district court for resentencing consistent with this opinion.
