U.S. v. Guzman-Bera, GUZMAN-BERA

• Decision Date: 27 June 2000
• Docket Number: No. 99-4140,GUZMAN-BERA,99-4140
• Citation: 216 F.3d 1019
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Guillermo, a.k.a. Augusto Pantoja, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1019

216 F.3d 1019 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee, v. Guillermo GUZMAN-BERA, a.k.a. Augusto Pantoja, Defendant-Appellant.

No. 99-4140.

United States Court of Appeals, Eleventh Circuit.

June 27, 2000.

Appeal from the United States District Court for the Southern District of Florida.

(No. 96-00534-CR-SM), Stanley Marcus, Judge.

Before ANDERSON, Chief Judge, and CARNES and RONEY, Circuit Judges.

PER CURIAM:

Guillermo Guzman-Bera pled guilty to illegally reentering the United States after deportation in violation of 18 U.S.C. § 1326(a) and (b)(2), and received a 77- month prison term. He appeals the imposition of a sixteen-level enhancement to his base offense level under U.S.S.G. § 2L1.2(b)(1)(A). That enhancement applies when a defendant reenters the United States after being previously deported after a criminal conviction for an "aggravated felony." We vacate and remand, holding that when a defendant has simply been placed on probation and has not been sentenced to a prison term at the time of deportation and reentry, the "aggravated felony" enhancement does not apply.

Alien Guillermo Guzman-Bera had been deported twice. The first time he was deported after being convicted for cocaine possession in 1991. Thereafter, he re-entered the United States without permission and in August 1995 was arrested for grand theft, third degree. A Florida state court found him guilty and sentenced him to five years of probation. This is the offense at the time of deportation and reentry that the district court defined as an aggravated felony.

In December 1995, the Immigration and Naturalization Service again deported Guzman-Bera. He later re-entered the United States again without permission and, in 1998, was arrested and convicted on several counts of grand theft. The State of Florida then charged Guzman-Bera with violating his probation for the 1995 theft conviction, revoked his probation, and sentenced him to 18 months.

The issue is whether that Florida conviction, coupled with the 18-months prison sentence for probation violation after deportation and after reentry, qualified as an aggravated felony at the time of his deportation and at the time of his reentry.

An "aggravated felony" under the statute is defined in terms of the sentence, not the criminal acts involved in the conviction, nor in terms of the conviction itself. To define the term aggravated felony for the purposes of § 2L1.2, the section's commentary points to 8 U.S.C. § 1101(a)(43), which states that an aggravated felony includes "a theft offense ... for which the term of imprisonment [sic] at least one year." 8 U.S.C. § 1101(a)(43)(G). The statute omits crucial language in the text, making it arguable as to whether it refers to the authorized term of imprisonment, even if not imposed, or the term of imprisonment actually imposed.

We follow the Third Circuit Court of Appeals in United States v. Graham, 169 F.3d 787 (3rd Cir.), cert. denied, --- U.S. ----, 120 S.Ct. 116, 145 L.Ed.2d 99 (1999) in holding that the statute means the sentence actually imposed. The Third Circuit is the only United States Court of Appeals found to have directly decided whether 8 U.S.C. § 1101(a)(43)(G) refers to the sentence authorized or the sentence imposed. The Court reasoned that, although a crucial verb was omitted, there was no evidence that Congress intended to depart from its prior position that an aggravated felony is determined by the imposed imprisonment. Graham, 169 F.3d at 790. Before its amendment in 1996, the statute defined aggravated felony as "a theft offense ... for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years." Graham, 169 F.3d at 790. The court concluded that when Congress amended the statute it did not intend to change the sentence imposition requirement, but, instead, simply lowered the penalty required to make a theft violation an aggravated felony from five years to one year. 169 F.3d at 791. We agree with the Third...