*The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-2302

___________

United States of America, *

*

Appellant, * Appeal from the United States

* District Court for the Southern

v. * District of Iowa.

*

Ignacio Tejeda-Perez, *

*

Appellee. *

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Submitted: December 14, 1999

Filed: December 23, 1999 

___________

Before WOLLMAN, Chief Judge, FAGG, Circuit Judge, and BATTEY,* District

Judge.

___________

FAGG, Circuit Judge.

Alien Ignacio Tejeda-Perez entered the United States in 1975. Between 1980

and 1998, Tejeda-Perez committed nineteen offenses here, including second-degree

felony theft in 1989. He was deported in 1994 and again in 1995. In 1999, TejedaPerez resurfaced in this country and pleaded guilty to illegally reentering the United

States after deportation in violation of 8 U.S.C. § 1326(a) (Supp. III 1997). At
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sentencing, the Government sought a sixteen-level enhancement of Tejeda-Perez's base

offense level under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A)

(1998), which applies when the defendant has been previously deported after a criminal

conviction for an "aggravated felony." The issue in this case is whether Tejeda-Perez's

second-degree felony theft conviction is an aggravated felony conviction for the

purposes of § 2L1.2(b)(1)(A). The district court concluded it is not, because TejedaPerez's one to fifteen year sentence for the conviction was suspended. The Government

appeals, and we reverse. 

To define the term "aggravated felony" for the purpose of § 2L1.2, the section's

commentary directs us to 8 U.S.C. § 1101(a)(43) (Supp. III 1997), which states an

aggravated felony includes "a theft offense . . . for which the term of imprisonment [is]

at least one year." Id. § 1101(a)(43)(G). Legislative history shows the word "is" was

mistakenly left out of the phrase. See United States v. Banda-Zamora, 178 F.3d 728,

729 (5th Cir. 1999); United States v. Graham, 169 F.3d 787, 790 (3d Cir.), cert.

denied, 120 S. Ct. 116 (1999); see also United States v. Estrada-Quijas, 183 F.3d 758,

761 (8th Cir. 1999). Before its amendment in 1996, the phrase read "a theft offense .

. . for which the term of imprisonment imposed (regardless of any suspension of such

imprisonment) is at least 5 years." 8 U.S.C. § 1101(a)(43)(G)(1994). The amendment

altered the provision "'by striking "is at least 5 years" each place it appears and

inserting "at least one year."'" Banda-Zamora, 178 F.3d at 729 (quoting legislative

history). In other words, Congress lowered the maximum penalty required to make a

theft violation an aggravated felony. See Graham, 169 F.3d at 791. The amendment

also deleted the phrase "imposed (regardless of any suspension of such imprisonment),"

in § 1101(a)(43)(G) (1994), but replaced it with a new § 1101(a)(48)(B), applicable to

the entire chapter, 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." See Banda-Zamora,
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178 F.3d at 729. If this definition applies, suspended sentences count for the purpose

of defining "term of imprisonment" in § 2L1.2.

Tejeda-Perez argues that rather than 8 U.S.C. § 1101(a)(48)(B), we should apply

U.S.S.G. § 4A1.2(b), which states a "sentence of imprisonment" does not include any

portion of a sentence that was suspended. We disagree. Section 4A1.2(b) defines

"sentence of imprisonment," rather than "term of imprisonment," and the definition is

for the purposes of computing a defendant's criminal history category. The courts that

have considered the issue agree that 8 U.S.C. § 1101(a)(48)(B), not U.S.S.G. §

4A1.2(b), applies for the purpose of defining "term of imprisonment" in U.S.S.G. §

2L1.2. See Banda-Zamora, 178 F.3d at 730; United States v. McKenzie, No. 98-5490,

1999 WL 735707, at *2 (3d Cir. Sept. 22, 1999); United States v. Chavez-Valenzuela,

170 F.3d 1038, 1039 (10th Cir. 1999). Thus, a conviction is an aggravated felony

within the meaning of § 2L1.2 if the defendant receives a sentence of at least one year,

even if the sentence is suspended. See Banda-Zamora, 178 F.3d at 730. 

This view is consistent with both 8 U.S.C. § 1101(a)(43) before its amendment,

and with a corresponding, earlier version of the commentary to § 2L1.2, which

expressly included suspended terms in the calculation of the term of imprisonment by

quoting from the earlier version of § 1101(a)(43). See U.S.S.G. § 2L1.2 n.7 (1995).

Both before and after the amendments to both § 1101 and the § 2L1.2 commentary,

courts have uniformly looked to the term of imprisonment imposed, regardless of any

suspension, rather than the time actually served. See Banda-Zamora, 178 F.3d at 730;

McKenzie, 1999 WL 735707, at *2; Chavez-Valenzuela, 170 F.3d at 1039 (citing

preamendment cases). In effect, 8 U.S.C. § 1101(a)(48)(B) simply supplanted the

preamendment version of 8 U.S.C. § 1101(a)(43) and U.S.S.G. § 2L1.2 commentary

note 7. Our interpretation is based on "'more than a guess as to what Congress

intended,'" so the rule of lenity does not apply as Tejeda-Perez contends. Graham, 169

F.3d at 790 (quoting Ladner v. United States, 358 U.S. 169, 178 (1958)). 
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Because Tejeda-Perez received a one to fifteen year sentence for the seconddegree theft, the theft conviction is an aggravated felony within the meaning of §

2L1.2(b)(1)(A), even though the prison sentence was suspended. The district court

committed error in concluding otherwise. Because the district court declined to impose

the enhancement, the court did not consider Tejeda-Perez's motion for a downward

departure under § 2L1.2 n.5. We decline the Government's invitation to decide the

propriety of that motion, and leave it for the district court's consideration first.

Accordingly, we reverse and remand for resentencing. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.