IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-40903

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ANTONIO BANDA-ZAMORA

Defendant-Appellant

 

Appeal from the United States District Court

For the Southern District of Texas

 

June 16, 1999

Before POLITZ, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This appeal of a sentence turns on whether a prior offense

counts as an aggravated felony. The defendant, Juan Antonio BandaZamora, had been convicted in Texas of aggravated assault and then

deported. Found again in the United States, he was charged with

reentry and pleaded guilty. Based on the presentence report’s

statement that Banda had received a sentence of “10 years

probation” for the aggravated assault conviction, the district

court increased Banda’s offense level by 16 levels pursuant to

U.S.S.G. § 2L1.2(b)(1)(A). Banda argues that § 2L1.2(b)(1)(A) is

unconstitutionally vague and, if not vague, inapplicable.

I
2

Section 2L1.2(b)(1)(A) authorizes a 16-level enhancement for

unlawfully entering or remaining in the United States when the

defendant previously was deported after a conviction for an

“aggravated felony.” The commentary defines “aggravated felony” by

reference to 8 U.S.C. § 1101(a)(43), which in turn defines

“aggravated felony” to include “a crime of violence . . . for which

the term of imprisonment [sic] at least one year.” Both parties

agree that Banda-Zamora’s prior conviction was for a crime of

violence, so we need consider only the phrase “for which the term

of imprisonment at least one year.”

This phrase is missing a verb. The United States Code

Annotated indicates that the missing verb is probably “is,” see 8

U.S.C.A. § 1101, at 73 (1999), and the legislative history confirms

this suggestion. Before an amendment in 1996, the phrase read “for

which the term of imprisonment imposed (regardless of any

suspension of imprisonment) is at least 5 years.” 8 U.S.C.A. § 1101

(1995). The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, § 321(a)(3), 110

Stat. 3009, 546, 627-28 (1997), amended the provision “by striking

‘is at least 5 years’ each place it appears and inserting ‘at least

one year.’”

This drafting snafu does not make the statute

unconstitutionally vague. The defendant seizes on a Supreme Court

dictum that “vague sentencing provisions may pose constitutional

questions if they do not state with sufficient clarity the

consequences of violating a given criminal statute.” United States
3

v. Batchelder, 442 U.S. 114, 123 (1979). This, however, cannot

mean that any ambiguity dooms a Sentencing Guidelines provision.

Many legal provisions are ambiguous, and our job is to interpret

them as best we can. 

A missing word is not a fatal ambiguity. Consider United

States v. Evans, 333 U.S. 483 (1948), which Blatchelder cites as an

example of a case with too vague a sentencing provision. The

statute criminalized two types of activity, but appeared to

penalize only one of them. See id. at 484-85. The Court rejected

the assumption that the penalty applied to both parts of the

statute, and was thus left with a criminal prohibition with no

sentencing range whatsoever. That the Court refused to invent a

penalty does not mean that the ambiguity here makes the provision

unconstitutionally vague. Crafting a punishment is different from

filling in a missing, but readily deducible, word. Indeed, the

Evans Court noted, “If only imperfect grammar stood in the way, the

construction might be accepted.” Id. at 487. The Constitution does

not outlaw bad grammar.

II

Before the passage of the IIRIRA, we scrutinized the wording

of judgments that mentioned both probation and suspension of

sentence. Compare United States v. Vasquez-Balandran, 76 F.3d 648

(5th Cir. 1996) (finding a suspension of sentence where a court

first ordered confinement but later indicated that the term of

imprisonment should be suspended in favor of probation), with

United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997)
 

1This language does clarify that both a suspension of the

“imposition” of imprisonment and a suspension of the “execution” of

the imprisonment count as suspended sentences. For us, this is

nothing new. We previously rejected what amounts to the same

distinction, dubbing it the difference between a sentence

“assessed” and a sentence “imposed” before being suspended. See,

e.g., United States v. Valdez-Valdez, 143 F.3d 196, 198 (5th Cir.

1998). This clarification has no application to the facts before

us.

4

(finding probation where an order of confinement was “next to” a

suspension of sentence and substitution of probation). As the

government conceded at oral argument, both cases recognize that

when a defendant is directly sentenced to probation, with no

mention of suspension of a term of imprisonment, there has been no

suspension of a term of imprisonment.

The IIRIRA need cause no reworking of this area of doctrine.

The Act deleted “imposed (regardless of any suspension of

imprisonment),” and added a new 8 U.S.C. § 1101(a)(48)(B), which

provides: “Any reference to a term of imprisonment or a sentence

with respect to an offense 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.” IIRIRA § 322(a), 110

Stat 3009 at 628-29.1 Because § 1101 offers a series of

definitions applicable to the entire chapter, the definition in §

1101(a)(48)(B) applies recursively to the definition in §

1101(a)(43)(F). Thus, when a court does not order a period of

incarceration and then suspend it, but instead imposes probation

directly, the conviction is not an “aggravated felony.”
5

The state court judgment is not in the record. We thus vacate

and remand to give the government a chance to show that the PSR’s

reference to a sentence of “10 years probation” referred to a

sentence of imprisonment that was suspended in favor of probation.

If the government meets this burden, the district court must

determine which of Vasquez-Balandran and Herrera-Solorzano

controls. Otherwise, the district court should not apply the 16-

level increase and must consider only whether the conviction was

for “any other felony” under § 2L1.2(b)(1)(B).

VACATED AND REMANDED.