*2 NOONAN*, CARNES, Before COX and Judges. PER CURIAM: *3 his Ayаla-Gomez appeals Geronimo in the being for found removal, in permission after States without principle 1326. The violation of 8 U.S.C. properly court is whether the district issue because an enhanced sentence imposed felony,” Ayala “aggravated committed an term is used U.S.S.G. as that 2L1.2(b)(1)(A) 1101(43), and 8 U.S.C. removal from the United States. before his aggravated felony means What 2L1.2(b)(1)(A) subject to de question States v. Drum novo review. United Cir.2001). mond, We affirm.
Ayala was convicted in a court superior County, Georgia first-degree in Hall an automobile with entering and superior intent to commit theft. him each to time sentenced for offense months), by followed (eight served be probation, months’ but yeаrs four and four imposed five-year it a nominal term of imprisonment, too1: WHEREUPON, ordered and ad- judged by the that: The said de- Court hereby to confine- fendant is sentenced Waldrop, Defender Pro- Jake Federal period years ment for a of 5 and 0 Atlanta, GA, Defendant-Appel- gram, System Penal months the State lant. such other institution as the Commis- Dеpartment Of- sioner of the State Henry Moye, Drug Task Allen SE direct, may to be fender Rehabilitation Office, Atlanta, GA, Atty’s Force-U.S. law, computed provided by as HOWEV- Plaintiff-Appellee. Court, ER, it is further ordered years THAT service of 0 and 8 sentence, re- months of the above may years mainder of and months * Noonan, Jr., transcript it was introduced as John T. U.S. Circuit shows Honorable Circuit, sitting by desig- Judge rely copy for the Ninth We Government Exhibit 1. on nation. Ayala's supplemental appended to brief. judg- superior 1. We cannot locate the record, sentencing ment in the probation years, years PROVIDED that five
served because the four four with' complies the said defendant months’ was a “suspensiоn” following general 'special conditions § requires us to include in the part herein as a Court imprisonment. The court accord this sentence. ingly Ayala’s forgery determined that entering-an-auto offenses were A handwritten notation “Credit followed: with for time served—all incarceration time felonies and started a base offense prior sentencing.” Following served level of 24. convictions, Ayala was deported these In appeal ruling, Ayala of that does Georgia Mexico. He came back to dispute that forgery entering an *4 following year, police where local familiar categories auto fit into the of offenses de
with him him on spotted way his to visit 1101(43)(G) (R). § scribed in or But he in pleaded his mother Gainesville. He dispute does the second requirement for 1326, § guilty violating to 8 U.S.C. which felony, an aggravated which is that the U.S., prohibits being found in the without County Hall court a term of im attorney general’s permission, the after prisonment greater year. Ayala than one deportation following ag- commission of an points out the actual of im sentence gravated felony.2 prisonment only eight was months. Even Sentencing The default Guidelines if we read the sentence through § offense level for 1326 is level 8. U.S.S.G. 1101(48)(B)’slens, continues, § he the sen 2L1.2(a). § But if the removal follows months, eight tence was still because aggravated felony, conviction for an thеn 1101(48)(B) § only suspended deems parts the base offense level is 24. Id. of the sentence to count imprisonment; as 2L1.2(b)(1)(A). § explicit Guidelines County probated the Hall all but ly incorporate the definition “aggravat of And, eight Ayala’s months of sentence. he 1101(43). § felony” ed found in 8 U.S.C. 1101(48)(B) concludes, § not merge does That section identifies and “theft probatiоn imprisonment. into the term of felonies, aggravated offenses” as only Banda-Zamora, United States v. 178 F.3d if the in imposition convictions resulted (5th Cir.1999) (directly imposed imprisonment” of a “term of of at least one probation, sentence opposed of as to one (R), 1101(43)(G), (P); year. 8 U.S.C. term, imposed prison substituted for an Guzman-Bera, United States does not' count toward the felo (11th Cir.2000). 1019, 1020 The term of ny imprisonment). term of The Govern imprisonment imposed, 8 U.S.C. ment counters that the of superi- effect 1101(48)(B) us, tells purposes these or court sentence here is identical to the -period “is deemed to include the of incar sentence, suspended effect of a and that ceration or confinement a court ordered Ayala’s suspension distinction between and regardless any of law suspension probation illusory. is therefore imposition or execution that imprison arguments Both have some force be- ment in in part.” or sentence or whole suspension cause is not defined in objection, Ayala’s Over the district court 1101(48)(B), and it agreed presentence report with the means different County things the Hall pre- was to different courts. In the indictment, Ayala’s alleges only Ayala’s guilty plea 2. arguably not that he left. could con- presented had been found back in the U.S. without the stitute a concession of the issue attorney general’s permission, аppeal. but also that he this But the does not so Government assert, aggravated felony question. committed an before he and we do not address that judge ... in which trial criminal cases system, as the Govern- federal Guidelines out, suspension of a sentence provides further points imposing ment after sentence way on the to simply рrocedural step a of the shall be that the execution prison a from a term excusing defendant have suspended, provision such shall on to serve his sentence allowing and him pro- placing the effect of defendant (a (1982) U.S.C. probation. See provided [about as article bation “may many circumstances sus- probation].”). of sen- imposition or execution pend therefore, whether inquiry, The core defendant on place tence §in limited to suspension terms and period such such intervening meaning step its federal best”), re- as the court deems conditions prison a between term imposition Sentencing Act of Reform pealed probation, im- placing defendant on 212(a)(2), 98-473, § 98 Stat. Pub.L. No. ports Georgia-law suspension use of system The federal does not 1987. super- mean a distinct kind extramural per- had provision ever appear have If vision. we use the federal understand- a sen- mitting simply suspend a judge term, ing Ayala’s sentence was sus- even imposing probation, tence withоut *5 does) County (and pended though even the Hall court permit it a though did sentence word, feder- in circum- did not use the because to the nothing probation of certain (1994). id.; § 18 3561 necessary stances. See U.S.C. a suspension proce- al mind step excusing part in a term of dural of contrast, suspen Georgia, In imprisonment probationary in favor of su- animals, probation and are twin simi sion hand, opt pervision. the other if we for On lar but distinct. Both are mechanisms Georgia understanding, then we must sentencing may a excuse which court a eight Aya- of conclude that all but months prison defendant from time. See O.C.G.A. probated la’s rather than sentence (“The (Lexis 10—1(a)(1) Supp.2000) § 17— § suspendеd, and that under granted judge imposing sentence is .the of than a imprisonment his term was less power authority probate and to or suspend sentence....”) any year. all or of the entire part may directly subject Both be to ordinary point Both the of stat- starting may conditions violation result in whose utory typical construction and the second 17-10-l(c) (per id. incarceration. See step “suspension” fail us here. word court, instance, mitting require for gives alone clues as mean- us no to which completion high equiva school diploma of carries, ing explanatory legisla- and no suspension); lent as condition of O.C.G.A. history accompanied tive has the addition 1997) (Michie § 42-8-34.1 for (procedures prison-term of the test or refinement “probated
revocation sen suspended or found in definition of felo- tence”). suspended probated But and sen ny. Illegal Immigration See Reform and differently; pro tences are a administered 1996, Immigrant Responsibility Act of bation with compliance officer monitors (10) C, 104-208, 321(a)(3), §§ Pub.L. div. conditions, while the sentencing 322(a)(1), 3009-546, 110 3009-627 Stat. responsible enforcing court is condi (amending aggravated-felony to -628 tests State, tions of suspension. Williams v. provide for theft and offenses to 217, 399, Ga.App. 381 400 S.E.2d one-year prison-term adding test defi- (1989). law, under a Georgia And sus imprisonment nition of term of in- pended subject pano is not to the suspendеd sentences); Immigration cludes surrounding ply probation. rules See (Michie 1997) (“In Nationality 42-8-39 all Technical Act O.C.G.A. Corrections 222(a), 103-416, § In pre-Guidelines Pub.L. 108 Stat. system, federal as (making aggra- theft offenses Georgia’s well is in present system, the imprisonment vated felonies if “the term of imprisonment imposed has a-real imposed (regardless any suspensiоn (in meaning ceiling as most circum- years”). is at imprisonment) stances) least 5 of the a spend time defendant can in if prison he violates condition of his is, however, There a fallback suspension probation. or See 18 U.S.C. principle resolving statutory-interpre (“the (1982) § 3653 may revoke the tation dilemmas like this one. Words probation and rеquire [the defendant] federal statutes reflect federal understand serve the sentence imposed, any lesser ings, explicit absent an statement to the sentence”); 42-8-34.1(b), (c) O.C.G.A. contrary, if a state even uses word (similar). As the maximum during time differently. See Dickerson v. New Banner may which the defendant punished with Inst., Inc., 103, 111-12, 460 U.S. 103 S.Ct. incarceration, the term of 986, 991, (1983) 74 L.Ed.2d (сiting thus a severity reasonable measure of the desirability uniformity justi of national offense, whatever mechanism the fying applying meaning federal of “convic conditionally court uses in excusing the statute); gun-licensing tion” defendant from some incarceration. v. Mejias, States 403-04 Cir.1995) (federal law judgment deems accordingly We hold that on nolо plea based contendere be “con imprisonment imposed terms of Ayala 841(b)(1)(B), viction” under 21 U.S.C. parts include the Ayala’s sentence that even if law Florida does not consider a Hall County probated under *6 conviction). plea nolo to entail Congress Georgia imprison law. Those terms of has not directed us to look the to law of each, years ment were thus five well above jurisdiction of conviction to determine floor, one-year and the district court what suspension means. This federal- correctly that determined the offenses meaning-prevails principle statutory of were felonies. The court thus accordingly requires construction that sus properly assessed Ayala’s base offense lev pension take its federal a meaning: proce el at 24 and the proper guidelines reached dural act precedes that a court’s authoriza range. tion for a defendant spend part to or all of Ayala’s accordingly sentence is affirmed. imposed prison sentence outside of definition, prison. Under that AFFIRMED. § deems the term imprison NOONAN, Judge, dissenting: 1101(43) §
ment in described to include all of a parts sentence of from observes, opinion As the of the court sentencing which the court excuses the Ayala-Gomez actually was to sentenced defendant, if even the court itself follows eight imprisоnment, months’ a term coin usage state-law and describes the excuse ciding already with the time he had been with a word other than “suspend.” custody. in did Georgia treat his deserving years crime as out, another four it principle
As turns this of statuto- jail. four in rule, Ayala-Gomez put months ry interpretation yields a reasonable deported. For a givеn likely the most reason that federal Congress pegged Ayala-Gomez the definition court to hold now that had aggravated felony to the term an imprisonment formally aggravated felony Georgia im- committed posed, period Georgia rather than the for which a im actually ordered the defendant prisonment years put serve. of five is to a federal
1320
The reference to the law of State
left to the States as well
matter
spin on
1101(a)(43)
distinct, although
§
not as
in a criminal
is as
case where
draconian
as to be
statutory reference to
complete,
as the
tells us it is better
precedent
venerable
921(a)(20).
in 18
Unit
state law
U.S.C.
mild.
(11th
Willis,
966,
v.
106 F.3d
967
ed States
correctly begins with
The
U.S.S.G.
Cir.1997).
jurisdic
by
That local variation
2L1.2(b)(l)(A),
incorporates
which
indisputa
intended has been made
tion is
felony” found
8
“aggravated
definition
given by the cir
by
interpretation
ble
1101(a)(43).
is in
The statute
U.S.C.
cuits,
one,
statutory
to the
including this
court is also correct
dispositive. The
fact
imprisonment.” Does the
phrase “term of
statute, federal law con-
in a federal
authorized
phrase mean the sentence
meaning of the terms used unless
trols the
actually imposed
the law or the sentence
Congress specifies otherwise. Dickerson
court? The answer has
sentencing
Inst., Inc.,
103,
460 U.S.
New Banner
It means the sentence
been unanimous.
986,
111-12,
statutes are read with a penalty plainly both the crime and its DUBINA, Before BIRCH and Circuit subject defined and if “the issue is to some SMITH*, Judges, and Judge. District doubt,” the doubts “are resolved favor Wrecking of the defendant.” Adamo Co. BIRCH, Judge: States, 275, 284-85, v. United 434 U.S. (1978).
S.Ct.
Florida: X,
Does Article Section 4 of the Florida exempt Constitution a Florida home- stead, where the debtor acquired the using homestead non-exempt funds with specific intent of hindering, delaying, or defrauding creditors in violation of Fla. Stat. 726.105 or Fla. Stat. AMERICA, LTD., HAVOCO OF §§ 222.29 and 222.30? Plaintiff-Appellant, Id. at 1144. thorough After a review оf question, Supreme Court of Flori- da issued following opinion: HILL, Defendant-Appellee. Elmer C. conclude that [W]e we must answer the
No. 97-2277. question certified in the affirmative. nonexempt transfer of assets into United States Court of Appeals, exempt an with homestead the intent to Eleventh Circuit. hinder, delay, or defraud creditors is not July 2001. excеptions one of the three to the home- X,
stead exemption provided in article Daniel, III, Daniel, Nixon J. John P. 4. can reasonably section Nor we extend Lane, Pensacola, FL, Beggs & for Plain- our equitable jurisprudence lien to ex- tiff-Appellant. cept such conduct from exemption’s *8 protection. equitable We hаve invoked Reed, III, Pensacola, Grady Thomas principles beyond to reach the literal FL, Rosenbloum, K. Louis Louis K. Ro- language excepts only where senbloum, P.A., Venn, Jr., E. John John E. through funds obtained or egre- fraud Venn, Jr., P.A., Pensacola, FL, for Defen- in, gious conduct were used to invest dant-Appellee. purchase, improve the homestead. Am., Hill, Havoco Ltd. v. 790 So.2d (Fla.2001). * Smith, Lynwood sitting by designation. Honorable C. U.S. District Alabama, Judge for the Northern District of