IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-50731

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUVENITO MONJARAS-CASTANEDA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

_________________________________________________________________ September 16, 1999 Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The issue presented in this appeal is one of statutory

construct i on. Its resolution will determine whether Juvenito

Monjaras-Castaneda’s crime of conviction, illegally transporting

aliens, is an aggravated felony, thereby requiring an enha nced

sentence.1 Monjaras had already met with the group in Mexico to arrange

the trip.

2 I

On September 24, 1992, six people illega lly crossed the Rio

Grande into the United States near Eagle Pass, Texas. They

continued to Smiley, Texas, where they joined Juventino MonjarasCastaneda (“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, Mon jaras pled guilty to illegal reentry into the

United States in violation of 8 U.S.C. § 1326(a) & (b)(2). The

district cou rt sentenced him to 46 months’ imprisonment. In

calculating this sentence, the dis trict 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 earlier2 This section of the sentencing guidelines is titled

“Unlawfully Entering or Remaining in the United States,” and reads:

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) If the defendant previously was deported after a

criminal conviction, or if the defendant unlawfully

remained in the United States following a removal

order issued after a criminal conviction, increase

as follows (if more than one applies, use the

greater):

(A) If the conviction was for an aggravated

felony, increase by 16 levels

.

(B) If the conviction was for (i) any other

felony, or (ii) three or more misdemeanor

crimes of violence or misdemeanor controlled

substance offenses, increase by 4 levels.

(Emphasis added.)

3 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 defined3 (1)(A) Any person who--

(i) knowing that a person is an alien, brings to or

attempts t o bring to the United States in any

manner whatsoever such person at a place other than

a designated port of entry or place ot her than as

designated by the Commissioner, regardless of

whether such alien has received prior official

a uthorization to come to, enter, or reside in the

United States and regardless of any future official

action which may be taken with respect to such

alien;

(ii) knowing or in reckless disregard of the fact that an

alien has come to, entered, or remains in the

United States in violatio n of law, transports, or

moves or attempts to transpor t or move such alien

within the United States by means of transportation

or otherwise, in furtherance of such violation of

law;

(iii)knowing or in reckless disregard of the fact that an

alien has come to, entered, or remains in the

United States in violation of law, conceals,

harbors, or shields from detection, or attempts to

conceal, harbor, or shield from detection, such

alien in any pla ce, including any building or any

means of transportation;

(iv) encourages or induces an alien to come to, enter, or

reside in the United States, knowing or in reckless

disregard of the fact that such coming to, entry,

or residence is or will be in violation of law; or

(v) (I) engages in any conspiracy to commit any of the

preceding acts, or (II) aids o r abets the

4 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 of fense 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. 3commission of any of the preceding acts,

shall be punished as provided in subparagraph (B).

5 It seems straightforward that Monjaras’s illegal-transport-ofaliens conviction qualifies him for the increased punishment, but

Monjaras ma kes 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 t ransporting 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 th e 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 the4 The case Monjaras cites is Carbajal-Gonzalez v. INS

, 78 F.3d

194, 201 (5th Cir. 1996).

5 The government cites Richardson v. Reno

, 162 F.3d 1338, 1350

n.42 (1 1th Cir. 1998) in support of its interpretation of

“congressional intent.”

6 law.” Monjaras then cites case law 4 interpreting § 12 51(a)(1)(E)

t o 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

definitio n of “aggravated felony.” 5 Second, the plain meaning of

§ 1101, § 1324, and U.S.S.G. § 2L1.2 includes transportation of

aliens because that o f fense is expressly enumerated in

§ 1101(a)(43)(N). Third, the government argues that the “relating

to” parenthetical merel y 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 rule7

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 C ir. 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 construc tion begins with an

examination of the statute’s actual language. U nited 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. S ee 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,” it8

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 G riffith, E nglish Grammar and Composition 37-40

(Heritage ed., Harcourt Brace Jovanovich 1977)(discussing

prepositional phrases).

This examination indi cates 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, bec ause 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

offen ses 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 t his manner based on these two9

considerations. S ee

, e.g.

, Q uarles 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,’ d esigned to guide the reader

through what would otherwise be a litany of numbers”).

The context in which the parentheti cal 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 qu alified 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 i ndeed expressly

limiting. One example is § 1101(a)(43)(F), which reads “a crime10

of violence (as defined in § 16 of Title 18, b ut 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 transportation of aliens is specifically

enumerated in § 1324(a). “A parenthetical is, after all, a

parenthetical, and it cannot be used to overcome the operative

terms of the statute.” C abell Huntington Hospital, Inc. v.

Shalala , 101 F.3d 984, 990 (4th Cir. 1996).

The p hrase “relating to alien smuggling” does describe the

offenses in § 1324(a). All involve the transportation, movement,

and hiding of aliens into and within the United States.

W e can quickly dispose of Monjaras’s arguments. We have

already addressed the statute’s plain meaning and need not restate

our reasoning. Since that meaning is plain, use of the rule of

lenity is not warranted. The rule applies only when the statute is

ambiguous. U nited States v. Shabani

, 513 U.S. 10, 17 (1994)

(citations omitted); United States v. Luna

, 165 F.3d 316, 344 (5th

Cir. 1999). Finally, the provision of the Immigration and11

Nationality Act that Monjaras relies on simply defines smuggling,

which is irrelevant to our inquiry. And Monjaras’s restatement of

the title of U.S.S.G. § 2 L1.1, “Smuggling, Transporting, or

Harboring an Unlawful Alien,” indicates that smuggling and

transporting should be treated together, no t separately, for

purposes of this guideline.

Even if Mo njaras were correct that the parenthetical is

limiting, he ignores the “relating to” portion of “(relating to

alien smuggling).” Transporting aliens is quite often “related to”

smuggling. This was especially true in Monjaras’s case, where the

transportation was merely one step in smuggling the six illegal

aliens from Mexico and Waco.

As a result, we conclude that the parenthetical “(relating to

alien smuggling)” acts only to describe, not to limit the “offenses6 Our construction accords with the legislative hist ory as

well. S ee H.R. Rep. No. 104-22, at 5 (1995) (“H.R. 688 makes

several amendments to the Immigration and Nationality Act

. . . the

bill would add certain crimes to the definition of ‘aggravated

felony’.

. . .”); id. at 7 (“One of the steps the Committee

recommends

. . . is to add several crimes to the definition of

‘aggravated felony.’”); id. (“In adding crimes to the list, effort

was made to ensure that the overall reach of the definition would

be consistent with the sentencing guidelines.”); H.R. Rep. No.

104-22, at 5 (1995)(“[these am endments] address the problems of

aliens who commit serious crimes while they are in the United

States and to give Federal law enforcement officials additional

means to combat organized immigration crime.”)

12 d escribed in paragraph (1)(A) or (2) of section 1324(a).” 6

Transporting aliens, therefore, is an aggravated felony for

purposes of U.S.S.G. § 2L1.2(b)(1)(A).

For the reasons stated herein, we AFFIRM.13 A F F I R M E D.7 The 10-16 month range would have resulted from a four-level

enhancement for a previous non-aggravating felony and a two-level

acceptance of responsibility adjustment.

14 POLITZ, Circuit Judge, dissenting:

Persuaded that Congress and the Sentencing Commission did not

intend for mere transportation of aliens without a corresponding

act of smuggling to be considered an aggravated felony, I

respectfully must dissent.

As the majority has noted, Juventino Monjaras-Castaneda pled

guilty to being found in the United States after previously having

been deported, resulting in a base offense level of eight under the

Guidelines. With an acceptance of responsibility adjustment, the

sentencing range would have been 10-16 months. 7 The district

court, however, applied a 16-level enhancement under USSG §

2L1.2(b)(1)(A), which, with an acceptance of responsibility

adjustment, resulted in a Guideline range of 46-57 months.

Monjaras was sentenced to 46 months imprisonment.

USSG § 2L1.2(b)(1)(A) requires the 16-level in crease in the

base offense level if the defendant previously was deported or

removed after a criminal conviction provided the conviction was for

an “aggravated felony.” Application note one to § 2L1.2 observes

that an aggravated felony “is defined at 8 U.S.C. § 1101(a)(43)

without regard to the date of conviction of the aggravated felony.”8 R uiz v. Estelle

, 161 F.3d 814 (5th Cir. 1998) (citing Crist

v. Crist

, 632 F.2d 1226, 1233 n.11 (5th Cir. 198 0) (stating that

courts must “give effect, whenever possible to all parts of a

statute and avoid an interpretation which makes a part redundant or

superfluous”)).

15

15 Under 8 U.S.C. § 1101(a)(43)(N), an “aggravated felony” includes

“an offense described in paragraph (1)(A) or (2) of section 1324(a)

of this title (relating to alien smuggling).” Monjaras

previ ously had been deported because he was convicted of

transportation of aliens under 8 U.S.C. § 1324(a)(1)(A). In that

offense, Monjaras met six undocumen ted aliens in Smiley, Texas,

near San Antonio, and began driving them to Waco. Because the

transportation offense of which he wa s convicted did not involve

bringing aliens across the border, Monjaras contends that the crime

is not one “relating to alien smuggling” and cannot be used for the

§ 2L1.2(b)(1)(A) sentencing enhancement.

Although the majority correctly frames the issue, I must

disagree with its resolution. By concluding that the parenthetical

phrase “relating to alien smuggling” is merely a description of the

crimes in § 1324(a), the majority necessarily ignores both the

plain language of the statute and the structure of other

immigration provisions.

The fundamental rule of statutory construction requires that

courts give effect to every word in a statute. 8 “Smuggling” is

defined as the “fraudulent taking into a country, or out of it,9 Black’s Law Dictionary 1389 (6th ed. 1990). Black’s Law

Dictionary also notes that “smuggling” and “smuggle” have “wellunderstood meaning[s] at common law.” Id.

10 8 U.S.C. § 1101(a)(3).

11 8 U.S.C. § 1324(a)(1)(A)(iv).

12 8 U.S.C. § 1324(a)(1)(A)(iii).

13 The majority places great emphasis on grammatical rules and

sentence structure in concluding that the parenthetical is

descriptive rather than restrictive. The majority recognizes,

however, that reliance on gram mar and construction does not

eliminate a restrictive interpretation of the parenthetical. See

ante at 8-9 (noting the two possible interpretations rema ining

after grammatical analysis).

16

16 merchandise which is lawfully prohibited.” 9 Consequently, because

“alien” is defined as a non-citizen or non-national of the United

States

, 10 “alien smuggling” would be the illegal taking of a noncitizen into the country, an action which, to me, entails a

crossing of the border. Further, there are several crimes listed

in § 1324(a)(1) & (2) that do not involve the bringing of aliens

into the United States, such as encouraging aliens to enter the

c ountry, 1 1 and concealing, harboring, or shielding them from

detection. 12 I am of the belief that if Congress had intended to

include a ny crime listed in § 1324(a)(1) or (2) as an agg ravated

felony, it simply would have said so. That it chose not to do so

but, rather, used the “relating to alien smuggling” language is not

properly weighed by the majority in my view. 1314 C ompare the ten-year penalty for offenses in which a person

“brings to” the United States an alien, 8 U.S.C. §

1324(a)(1)(B)(i), with the five-year penalty for transporting,

concealing, and harboring offenses, 8 U.S.C. § 1324(a)(1)(B)(ii).

15 8 U.S.C. § 1227(a)(1)(E)(i) (emphasis added). S ee Sullivan

v. Stroop , 496 U.S. 478 (1990) (holding that identical words used

in different parts of the same act are intended to have the same

meaning); Matador Petroleum Co rp. v. St. Paul Surplus Lines Ins.

Co. , 174 F.3d 653 (5th Cir. 1999).

16 See USSG § 2L1.1 (emphasis added).

17 H olly Farms Corp. v. N.L.R.B.

, 517 U.S. 392 (1996) (holding

that terms connected by a disjunctive are to be given separate

meanings) (quoting Reiter v. Sonotone Corp.

, 442 U.S. 330 (1979));

Crist , 632 F.2d at 1233 n.11.

17

17 My resolution is buttressed by the construction of other

immigration provisions. For example, § 1324 sets more serious

penalties for offen ses which involve the bringing of aliens into

the United States as compared to the harboring, transporting, and

concealing offenses, in which the alien already is in the country. 14

Additionally, elsewhere in the Immigration and Nation ality Act

“smuggling” is defined as having “encouraged, induced, assi sted,

abetted, or aided any other alien to enter or to try to enter the

United States in violation of law

. ” 15 Likewise, the disjunctive

division of Guideline provision titles such as “Smuggling,

Tra n sporting, or Harboring an Unlawful Alien” 16 indicates a

distinction between smuggling and transporting offenses. 1718 U nite d States v. Brito , 136 F.3d 397 (5th Cir.), c ert.

denied , 118 S. Ct. 1817 (1998).

18

18 Further, the majority ignores the rule of lenity, which

requires that ambiguities in federal statutes or sentencing

enhancements are to be considered in the defendant’s favor and are

not to be construed in a way that maximizes the penalty. 18 Because

Congress and the Sentencing Commission did not define “alien

smuggling” and the crimes that relate to the smuggling, it would

appear that there exists an ambiguity in the statute that should

have resulted in an interpretation favorable to Monjaras.

Final ly, the very seriousness of the 16-level enhancement

cannot go unnoticed. Using the bottom of the Guideline range, the

aggravated felony e nhancement caused a f our-fold increase in

Monjaras’ sentence. In my opinion the majority’s holding relies on

far too slender a reed to warr ant this dramatic increase.

Convinced that Congress meant to require a border-crossing element

when it authori zed an aggravated felony enchantment for crimes

“relating to alien smuggling,” I must dissent.