United States of America v. Monjaras-Castaneda

• Citation: 190 F.3d 326
• Decision Date: 16 September 1999
• Docket Number: PLAINTIFF-APPELLEE,No. 98-50731,MONJARAS-CASTANED,DEFENDANT-APPELLANT,98-50731
• Parties: (5th Cir. 1999) UNITED STATES OF AMERICA,, v. JUVENITO
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 326

190 F.3d 326 (5th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JUVENITO MONJARAS-CASTANEDA, DEFENDANT-APPELLANT.

No. 98-50731

U.S. Court of Appeals, Fifth Circuit

September 16, 1999

Rehearing Denied Oct. 20, 1999.

Appeal from the United States District Court for the Western District of Texas

Before Politz, Jolly, and DUHEE, Circuit Judges.

The opinion of the court was delivered by: E. Grady Jolly, Circuit Judge

The issue presented in this appeal is one of statutory construction. Its resolution will determine whether Juvenito Monjaras-Castaneda's crime of conviction, illegally transporting aliens, is an aggravated felony, thereby requiring an enhanced sentence.

I.

On September 24, 1992, six people illegally crossed the Rio Grande into the United States near Eagle Pass, Texas. They continued to Smiley, Texas, where they joined Juventino Monjaras-Castaneda ("Monjaras").¹ He was supposed to take them to Waco, Texas, but a traffic accident on September 26 ended the trip. The police arrested Monjaras and the rest of the group.

Monjaras later pled guilty to transporting aliens in violation of 8 U.S.C. §§ 1324(a)(1)(B)(now §§ 1324(a)(1)(A)(ii)) and was sentenced to six months' imprisonment. After serving his sentence, he was deported. He reentered the country two years later and was again deported in 1996. In 1998, the border patrol arrested him, along with his brother, near Carrizo Springs, Texas.

This time, Monjaras pled guilty to illegal re-entry into the United States in violation of 8 U.S.C. §§ 1326(a) & (b)(2). The district court sentenced him to 46 months' imprisonment. In calculating this sentence, the district court increased the base offense level by 16 under U.S.S.G. §§ 2L1.2(b)(1)(A) because of Monjaras's 1992 aggravated felony conviction for illegally transporting aliens. In rejecting Monjaras's objection to the enhancement, the district court explained that Monjaras's earlier six-month prison sentence had not been a sufficient deterrent to stop him from returning to the United States. Monjaras now challenges the sentence enhancement by arguing that illegally transporting aliens does not fall within the definition of "aggravated felony" for purposes of U.S.S.G. §§ 2L1.2(b)(1)(A).

II.

A.

There is only one issue before us on appeal: whether the term "aggravated felony" in §§ 2L1.2(b)(1)(A)² of the federal sentencing guidelines includes illegal transport of aliens. Application Note One to this section explains that "[a]ggravated felony is defined at 8 U.S.C. §§ 1101(a)(43)." U.S.S.G. §§ 2L1.2, comment, n.1. Under 8 U.S.C. §§ 1101(a)(43)(N), "The term 'aggravated felony' means-- . . . an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling)." Monjaras concedes that 8 U.S.C. 1324(a)(1)(A) describes the offense of illegal transport of aliens, along with several other offenses related to illegal aliens.³

It seems straightforward that Monjaras's illegal-transport-of-aliens conviction qualifies him for the increased punishment, but Monjaras makes three statutory construction arguments to the contrary. All three concern the parenthetical in 8 U.S.C. §§ 1324(a)(1)(A), "(relating to alien smuggling)."

First, Monjaras contends that under the plain meaning of §§ 1324(a)(1)(A), a conviction for transporting aliens does not "relate to alien smuggling." He points out that "smuggling" involves crossing a national border. Monjaras then concludes that the only way to give effect to the phrase "relating to alien smuggling" is to limit the scope of §§ 1101(a)(43)(N) to include only the crimes in §§ 1324(a) that involve alien smuggling.

Second, Monjaras supports his proposed construction by arguing that it is consistent with other provisions of the Immigration and Nationality Act and the sentencing guidelines interpreting them. He begins by arguing that "smuggling" in §§ 1101(a)(43)(N) should have the same meaning as in 8 U.S.C. §§ 1251(a)(1)(E) (recodified at 8 U.S.C. §§ 1227). That section defines "smuggling" as having "encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of the law." Monjaras then cites case law⁴ interpreting §§ 1251(a)(1)(E) to require entry into the United States in order to qualify as "smuggling." He next points to the title of U.S.S.G. §§ 2L1.1, "Smuggling, Transporting, or Harboring an Unlawful Alien." Since it separates "smuggling" and "transporting" as two different offenses, Monjaras believes we should treat each differently.

Third, Monjaras contends that we must construe any ambiguity in §§ 1101(a)(43)(N) in his favor under the rule of lenity.

The government responds with the following five arguments of its own. First, the intent of Congress has been to expand the definition of "aggravated felony."⁵ Second, the plain meaning of §§ 1101, §§ 1324, and U.S.S.G. §§ 2L1.2 includes transportation of aliens because that offense is expressly enumerated in §§ 1101(a)(43)(N). Third, the government argues that the "relating to" parenthetical merely describes the general nature of the felonies in §§ 1324(a)(1)(A) rather than which of those felonies apply to §§ 1101(a)(43)(N). Fourth, even if the "relating to" parenthetical is restrictive, not descriptive, a broad reading of "relating to" still includes transporting aliens. Fifth, the rule of lenity does not apply because the two statutes and the sentencing guidelines are unambiguous.

B.

We review the district court's application of the sentencing guidelines de novo, United States v. Hinojosa-Lopez, 130 F.3d 691, 693 (5th Cir. 1997), and conclude that "aggravated felony" in U.S.S.G. §§ 2L1.2(b)(1)(A) includes transportation of aliens. The central question is whether the parenthetical in §§ 1101(a)(43)(N) is descriptive or restrictive.

The process of statutory construction begins with an examination of the statute's actual language. United States v. Alvarez-Sanchez, 511 U.S. 350, 356, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994). The language at issue is from §§ 1101(a)(43)(N): "The term 'aggravated felony' means-- . . . an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling)."

An examination of this language reveals that the parenthetical, "(relating to alien smuggling)" refers to "paragraph (1)(A) or (2) of section 1324(a) of this title," not "offense." The conventional rules of grammar demonstrate this. See Norman J. Singer, 2A Sutherland Statutory Construction §§ 45.13, at 78 (5th ed. 1992)("[L]egislators can be presumed to rely on conventional language usage."). If the parenthetical referred to "offense," it would have been placed directly after that word. The parenthetical instead has been placed in the prepositional phrase introduced by "in," of which "paragraph" is the subject. See John E. Warriner and Francis Griffith, English Grammar and Composition 37-40 (Heritage ed., Harcourt Brace Jovanovich 1977)(discussing prepositional phrases).

This examination indicates that the parenthetical is more reasonably interpreted as descriptive rather than limiting. If the parenthetical referred to "offenses," then the statute would effectively read: "offense[s] (relating to alien smuggling) described in paragraph (1)(A) or (2) of section 1324(a) of this title," which obviously would be a very different proposition that would clearly favor Monjaras's interpretation. But, alas, that is not the way the statute is written.

Reading the parenthetical to refer to "paragraph" does not end our inquiry, however, because there are still two possible interpretations. Should we read it as "the offenses described in paragraph (1)(A) or (2) that are smuggling offenses," or as "the offenses described in paragraph (1)(A) or (2), which generally deals with smuggling offenses"?

We read the parenthetical descriptively based on the general context and structure of §§ 1101(43). Courts have often construed parentheticals in statutes in this manner based on these two considerations. See, e.g., Quarles v. St. Clair, 711 F.2d 691, 700 n.28 (5th Cir. 1983)(concluding that parenthetical in 42 U.S.C. §§ 602(a)(28) was for clarification purposes only); United States v. Herring, 602 F.2d 1220, 1223 (5th Cir. 1979)(holding that parenthetical in 18 U.S.C. §§ 1961 was "merely to aid identification of [18 U.S.C.] §§ 2314 rather than to limit"); United States v. Kassouf, 144 F.3d 952, 959-60 (6th Cir. 1998)(finding parenthetical in 26 U.S.C. §§ 6531(6) descriptive); United States v. Garner, 837 F.2d 1404, 1419 (7th Cir. 1987)(finding parenthetical in 18 U.S.C. 1961(1)(B) "mere 'visual aids,' designed to guide the reader through what would otherwise be a litany of numbers").

The context in which the parenthetical appears in this case suggests its descriptive nature. Section 1101(a)(43) contains a long list of aggravated felonies that it references by section number. Without any descriptions of what this "litany of numbers" referred to, determining whether an offense qualified as an aggravated felony would be a long and arduous process. One would need to look up each section number in the Code to get to the right one. The parentheticals here provide an "aid to identification" only.

The government makes a strong structural argument by pointing to parentheticals in §§ 1101(a)(43) that are indeed expressly limiting. One example is §§ 1101(a)(43)(F), which reads "a crime of violence (as defined in §§ 16 of Title 18, but not including a purely political offense) for which a term of imprisonment is at least one year." (Emphasis added.) Another is §§ 1101(a)(43)(J): "an offense described . . . in section 1084 (if it is a second or subsequent offense)." (Emphasis added.)

Congress thus clearly demonstrated its ability to exclude some specific offenses from those listed in the more general sections. We will not therefore infer exclusion in §§ 1101(a)(43)(N), especially since...