UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-50511

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE FRANCISCO VASQUEZ-BALANDRAN,

Defendant-Appellant.

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Appeal from the United States District Court for the

Western District of Texas

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February 19, 1996

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The sole issue on this direct criminal appeal is whether the

district court properly determined that the appellant's prior Texas

state conviction for robbery was an "aggravated felony" as defined

by U.S.S.G. § 2L1.2(b)(2), a sentencing guideline enhancemen t

provision. We affirm.

I. FACTS AND PROCEDURAL HISTORY

On May 12, 1995, Jo se Vasquez-Balandran (Vasquez) pleaded

guilty to illegal reentry into the United States after deportation

in violation of 8 U.S .C. § 1326 and was sentenced to 46 months

imprisonment. Previously, in 1994, Vasquez had been deported after1 The state court judgment provided as follows:

It is therefore considered and adjudged by the Court that

the said Defendant is guilty of the offense of Robbery,

Count 2 paragraph "B" as confessed by him in said plea of

guilty herein made, and that he be punished by

confinement in the Texas Department of Criminal JusticeInstitute Division for ten (10) years and a fine of $0

. . . T he imposition of the above sentence (and fine) is

suspended and the Defendant is placed on adult probation

und er the terms and conditions set out in Exhibit "A"

hereto attached.

(emphasis added).

2 his conviction in Texas state court for robbery. Based on this

previous conviction, the probation officer recommended the

application of U.S.S.G. § 2L1.2(b)(2), which provides for a 16-

level upward adjustment in offense level for a defendant convicted

under § 1326 who previously was deported after a conviction for an

aggravated felony.

Vasquez objected to the probation officer's recommendation,

arguing that his robbery conviction could not be classified as an

aggravated felony because, according to the commentary's definition

of an aggravated felony, a sentence of imprisonment of at least

five years must have been imposed. Section 2L1.2, comment. (n.7).

In his case, Vasquez argu ed, imprisonment was not imposed but

rather probation was granted. The probation officer responded that

the state judgment indicated a sentence of ten years imprisonment

was imposed and then suspended, 1 and that the guideline commentary

provided that it applied "regardless of any suspension of such

imprisonment." Section 2L1.2, comment. (n.7). Vasquez again

objected, arguing that under Texas law, when a defendant receives2 Congress defined "crime of violence" to mean:

(a)n offense that has an element the use, attempted

use, or threate ned use of physical force against the

person or property of another, or

(b) any other offense that is a felony and that, by

its nature, involves a substantial risk that physical

force against the person or property of another may be

3 probation, a sentence is not "imposed" unless and until probation

is revoked. The district court adopted the presentence report and

held that § 2L1.2 applied based on Vasquez's prior "conviction of

a crime of violence and a sentence exceeding five years, even

though it was suspended." Vasquez now appeals.

II. ANALYSIS

Vasquez argues that the district court erroneously interpreted

§ 2L1.2(b)(2) to apply to his case. More specifically, relying on

Texas law, he contends th e district court erroneously determined

that his prior state conviction was an "aggravated felony" as

defined by § 2L1.2(b)(2). Whether the sentencing guidelines apply

to a prior conviction is a question of law. U nited States v.

Garcia-Rico

, 46 F.3d 8, 9 (5th Cir.), cert. denied

,

__ U.S.

__, 115

S.Ct. 2596 (1995). We review questions of law de novo

. Id

.

Section 2L1.2(b)(2) provides that "[i]f the defendant

previously was deported after a c onviction for an aggravated

felony, increase by 16 levels." The commentary to that guideline

explains that "aggravated felony" includes "any crime of violence

(as defined in 18 U.S.C. § 16

. . . ) for which the term of

imprisonment imposed (regardless of any suspension of such

imprisonment) is at least five ye ars." § 2L1.2, comment. (n.7). 2used in the course of committing the offense.

18 U.S.C. § 16.

3 As the Government notes, on September 1, 1993, Texas

amended Art. 42.12 § 3 by replacing all references to "adult

probation" with "community supervision." Interestingly, the

amended version does not refer to "assessing" a sentence.

4 That definition mirrors the definition of "aggravated felony" in 8

U.S.C. § 1101(a)(43)(F).

Vasquez does not dispute that his prior Texas conviction for

robbery constitutes a crime of violen ce. He argues that the 16-

level enh ancement does not apply because no term of imprisonment

was ever "imposed" as required by § 2L1.2(b)(2). Instead, he

argues that, pursuant to Texas law, when a trial court granted

probation, a sentence was "assessed" but the sentenc e was not

imposed

. 3

Texas law did distinguish between "assessing" and "imposing"

a sentence in the context of granting probation under the former

versi on of Art. 42.12, § 3 V.A.C.C.P, which was in effect at the

time that Vasquez committed the robbery. M cCullar v. State

, 676

S.W.2d 587, 588 (Tex.Cr.App. 1984). Nevertheless, because we

determine that federal law rather than state law applies to this

issue of statutory interp retation, the distinction made by the

Texas courts is not controlling.

In United States v. Morales

, 854 F.2d 65, 68 (5th Cir. 1988),

we explained that while state law may be examined for informational

purposes, we are not constrained by a state's "treatment of a

felony co nviction when we apply the federal sentence-enhancement5

provisions." Likewise, in the instant case, we are not bound by

Texas's treatment of Vasquez's prior state sentence under Art.

42.12, § 3.

Moreover, there is no indication in the relevant guideline or

statutes that the Sentencing Commission or Congress intended state

law to determine whether the term of imprisonment was imposed

. S ee

Wilson v. I.N.S.

, 43 F.3d 211, 214-15 (5th Cir.), cert. denied

,

__

U.S. __, 116 S.Ct. 59 (1995) (explaining that federal law governs

the application of federal legislation in the absence of clear

language to the contrary) (quoting Yanez-Popp v. INS

, 998 F.2d 231

(4th Cir. 1993)). We therefore must assume that the Sentencing

Commission/Congress did not inte nd to make the application of §

2L1.2(b)(2) dependent upon Texas law.

In any event, regardless of the semantics used by the Texas

legislature, we must interpret the provision in light of the

purpose or policy the Sentencing Commission sought to serve. See

United States v. One Parcel of Land

, 33 F.3d 11, 12 (5th Cir.

1994). Accordingly, federal law controls.

Vasquez argues that the district court's interpretation of §

2L1.2(b)(2) is contrary to that provi sion's purpose. He asserts

that, by its terms, that provision does not apply to a sentence of

probation. He describes Texas's requirement of "assessing" a term

of punishment before granting probation as an "unimportant detail."

He argues that the federal government and other states do not have

such a requirement, and thus, it would be unfair and inconsistent

to treat Vasquez's probationary sentence diffe rently because of4 Further, in the similar context of adding points to a

6 this anomalous requirement.

Contrary to Vasquez's ass ertion, Texas did (and still does)

have a provision that allowed a defendant to be placed on probation

(now "community supervision") without first assessi ng a term of

imprisonment. Tex.C.C.P. Art. 42.12 Sec. 5(a) (Deferred

Adjudication). More importantly, under Texas law, a sentence is

not "imposed" until probation is revoked. McCullar v. State , 676

S.W.2d 587, 588 (Tex.Cr.App. 1984). When a Texas trial court

grants probation, it assesses punishment; however, a "[s]entence is

not imposed until probation is revoked

. . . ." Id . (emphasis

added). As such, once a sentence is imposed, it is to be served,

and the imposition cannot be suspended. Under those circumstances,

no Tex as defendant who received a suspended sentence under Art.

42.12 § 3 would be eligible for this enhancement because the

suspended sentence would not be deemed "imposed" until probation

was revoked. It does not appear that the Sentencing Commission or

Congress intended such a result.

The language "regardless of any s uspension of such

imprisonment" indicates that the Commission intended that

defendants who had a previously deter mined (whether it is called

imposed or assessed) period of incarceration of at least five years

would receive the aggravated felony en hancement under §

2L1.2(b)(2). Section 2L1.2, comment. (n.7). If we were to accept

Vasquez's argument, then defendants in Texas with assessed but not

imposed periods of incarceration would escape the enhancement. 4 Indefendant's criminal history category for a prior conviction under

§ 4A1.2(a)(3), the Sentencing Commission treated a sent ence in

which the court suspended imposition the same as a sentence in

which the court suspended the execution. S ee § 4A1.2(a)(3) &

U.S.S.G. App. C, Amendment 352.

5 Pursuant to § 2L1.2, the Sentencing Commission/Congress

clearly intended to substantially increase the punishment of aliens

who reentered the United States w ithout permission after being

deported based on an aggravated felony.

7 the context of enhancing a defendant's sentence under § 2L1.2, 5 we

find that the re is no meaningful distinction between a Texas

court's "assessing" a term of imprisonment and "imposing" a term of

imprisonment. To hold otherwise would limit the applicability of

the enhancement under § 2L1.2( b)(2) to those defendants who

actually serve their sentences. Clearly, the Sentencing Commission

envisioned this provision's appli cability to extend to those

defendants who actually are ordered to serve their se ntences and

also those defendants who avo id a determined period of

incarcer ation by a process which suspends serving the term of

imprisonment. Thus, although the Texas legislature labeled it

"assessing," for our purposes, the court was imposing a term of

imprisonment, which it then suspe nded. In the instant case,

Vasquez would have had to serve the determined period of

con finement but for the probation order that suspended its

imposition. Accordingly, we hold that the district court properly

applied the enhancement under § 2L1.2.

AFFIRMED.