Notes:

The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation

The dissent's attempt to distinguishJimenez would be more convincing if the Commission, in amending § 2L1.2, had not adopted the very phrase "sentence imposed" that we held synonymous with "term of imprisonment" in Alberto-Gonzalez and Jimenez. Drug trafficking offenses previously had not been graded by sentence length at all; by adopting the "sentence imposed" standard, the Commission embraced rather than rejected our approach. The Commission's rejection of the "time served" proposal is irrelevant because Jimenez did not apply a "time served" standard: "Term of imprisonment" is "the actual sentence imposed by the judge"; it therefore excludes good-time credits and similar nonjudicial (and thus difficult-to-ascertain) sentence adjustments. Finally, although unrevoked suspended sentences are treated differently by 8 U.S.C. § 1101(a)(48)(B), that provision was not at issue in Jimenez, cf. United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir.2001) (noting inapplicability of the provision where defendant is sentenced directly to probation), so it doesn't distinguish the case.

WILLIAM A. FLETCHER, Circuit Judge, dissenting:

The majority concludes that a previously suspended three-year prison sentence imposed because of a probation violation counts under U.S.S.G. § 2L1.2(b)(1) as part of a "sentence imposed" because of a state drug conviction. I respectfully dissent.

As a result of a drug trafficking conviction in 1988, Moreno-Cisneros received a three-year period of probation, a three-year suspended sentence, and a credit for the 266 days he had already served in prison. The sentencing document in the state court provided in relevant part:

It appearing to the Court that the ends of justice will be served by granting probation to the Defendant,

NOW, THEREFORE, IT IS ORDERED AND ADJUDGED that Defendant be and he/she is hereby (sentenced to Ca. Dept. of Corrections for the term of Three (3) years but that execution) (admitted to probation and that imposition) of sentence is hereby suspended for a period of (3) years from and after this date, such period of time to be considered the period of probation, subject to the following conditions:

....

... A violation of any of [the] terms [of your probation] will render you liable to the following penalt[y] ....

... If the Court has reason to believe that you have violated any of the terms of your probation, the Court may revoke and terminate your probation, and may after hearing, order that you serve any or all of the sentence heretofore suspended....

(Underlining added to indicate words inserted by the state court into blanks in the form; italics added for emphasis.) After the court entered the order, Moreno-Cisneros was released from custody. Moreno-Cisneros subsequently violated the conditions of his probation and, as a consequence of that violation, was sentenced to serve the previously suspended three-year sentence.

In 2001, Moreno-Cisneros was convicted under 8 U.S.C. §§ 1326(a) and 1326(b)(2) of illegal reentry into the United States after having been previously convicted of an aggravated felony. The Sentencing Guideline for § 1326(b)(2) distinguishes among prior convictions for purposes of sentencing. Specifically, U.S.S.G. § 2L1.2(b)(1)(A)(i) provides that the offense level of someone convicted under § 1326(b)(2) should be increased by 16 levels

If the defendant previously was deported... after — (A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months....

(Emphasis added.) By contrast, for drug trafficking convictions in which the "sentence imposed" was 13 months or less, the offense level is increased by only 12 levels. U.S.S.G. § 2L1.2(b)(1)(B). These provisions of the Guidelines became effective on November 1, 2001, a week before the district court sentenced Moreno-Cisneros.

The question of first impression posed in this case is whether the phrase "sentence imposed" in § 2L1.2(b)(1) refers to the sentence imposed at the time of sentencing, or whether it also refers to a suspended sentence later imposed because of a post-sentencing probation violation. The answer is given by the Application Note 1(A)(iv) to § 2L1.2, which provides:

For purposes of subsection(b)(1) [of § 2L1.2]:

....

(iv) If all or any part of a sentence of imprisonment was probated, suspended, deferred, or stayed, "sentence imposed" refers only to the portion that was not probated, suspended, deferred, or stayed.

(Emphasis added.)

An Application Note is binding authority unless it is inconsistent with the Guideline itself. See Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 123 L. Ed. 2d 598 (1993). Application Note 1(A)(iv) can hardly be clearer: "[F]or purposes of" U.S.S.G. § 2L1.2(b)(1), the phrase "sentence imposed" does not include a suspended sentence. The majority and I agree that Moreno-Cisneros initially received a three-year "suspended" sentence within the meaning of the Guideline, and that this suspended part of his sentence was not, at the time of sentencing, part of the "sentence imposed" within the meaning of the Guideline.1 The majority concludes, however, that if a suspended sentence is later imposed as a result of a later probation violation, the term "sentence imposed" is retroactively expanded to include the later-imposed sentence.

The majority gives three reasons in support of its conclusion. First, it states that "the Guideline and the application note ... do not limit the sentence imposed to the sentence as it was originally imposed." I believe that in saying this the majority simply ignores the words of the Guideline and Application Note it purports to apply. The Guideline and Note do indeed "limit the sentence imposed to the sentence as it was originally imposed." They do so by specifically excluding any suspended sentence from the definition of "sentence imposed." To support its refusal to give effect to the text, the majority states that it can see no policy reason for treating differently sentences that are originally imposed from sentences that result from probation violations. That statement is, of course, beside the point. The task of this court is not to invent policy reasons that should have motivated the Sentencing Commission, and then to read the Guidelines and Applications Notes in light of those reasons. Its task is to apply the Guidelines and Application Notes as they are written.

Second, the majority relies on U.S.S.G. §§ 4A1.1 and 4A1.2 (contained in Chapter Four of the Guidelines) to escape from the text of U.S.S.G. § 2L1.2(b)(1) and its Application Note (contained in Chapter Two). Section 4A1.1(a) and (b) uses the phrase "prior sentence of imprisonment." Section 4A1.2(k)(1) then defines that phrase to include imprisonment imposed after revocation of probation. If the phrase "prior sentence of imprisonment," as used in § 4A1.1, were synonymous with the phrase "sentence imposed," as used in § 2L1.2, the majority would be right to rely on the definition provided in § 4A1.2(k)(1). But the phrases have different functions and different meanings.

Section 2L1.2 (containing the phrase "sentence imposed") is part of Chapter Two, titled "Offense Conduct." By contrast, §§ 4A1.1 (containing the phrase "prior sentence of imprisonment") is part of Chapter Four, Part A, titled "Criminal History." In common with other circuits, we have recognized the different functions of these two chapters. Chapter Two provides Guidelines relevant to the offense conduct for which the defendant is being sentenced. Chapter Four, Part A, provides Guidelines relevant to the criminal history of a defendant prior to the offense for which he is being sentenced. "Offense level determination serves a different purpose than the criminal history calculation." United States v. Parker, 136 F.3d 653, 655 (9th Cir.1998). See United States v. Hidalgo-Macias, 300 F.3d 281, 286 (2d Cir.2002) ("The offense level rules address the severity of the instant offense, whereas the criminal history rules are intended to address issues of recidivism and deterrence."); United States v. Burnett, 952 F.2d 187, 189 (8th Cir.1991) (same); United States v. Martinez, 931 F.2d 851, 852 n. 1 (11th Cir.1991) (same). See also United States v. Tejeda-Perez, 199 F.3d 981, 982 (8th Cir.1999) (explicitly refusing to apply the definition of "sentence of imprisonment" under U.S.S.G. § 4A1.2(b) to the definition of "term of imprisonment" for sentencing under § 2L2.1).

Moreno-Cisneros was convicted under 8 U.S.C. §§ 1326(a) and (b)(2), for which a prior conviction for an "aggravated felony" is an element of the crime, and hence part of the offense conduct. Section 2L1.2(b) distinguishes more serious from less serious offenses. In the amended § 2L1.2, the Sentencing Commission employed the phrase "sentence imposed," and chose the period of incarceration imposed at the time of sentencing as the factor by which to measure seriousness of the offense conduct. It did not choose the length of the original period of incarceration, plus any additional incarceration resulting from subsequent bad behavior such as violation of probation. This choice makes obvious analytic sense, given that the purpose of the Guideline is to evaluate the seriousness of the offense conduct rather than of any subsequent bad behavior.

On the other hand, §§ 4A1.1 and 4A1.2(k)(1) are directed to a defendant's criminal history, and measure the seriousness of all of his prior bad acts. In drafting these sections, the Sentencing Commission employed the phrase "prior sentence of imprisonment," and chose all periods of prior incarceration of the defendant, including incarceration resulting from probation violations, as the appropriate measure. This choice makes obvious sense, given that the purpose of the Guideline is to evaluate all the bad behavior of the defendant prior to the offense for which he is being sentenced.

Not only is it clear from the functions of the chapters in which the two sections appear that the two phrases are designed to have different meanings, the text of the restrictive definition of "sentence imposed" contained in Application Note 1(A)(iv) to § 2L1.2(b)(1) specifically provides that the definition is provided "for purposes of subsection (b)(1)" of § 2L1.2. The Note makes no reference to any other definition. Further, Application Note 5 provides that "[a] conviction taken into account under subsection (b)(1) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four, Part A (Criminal History)." The Note thus indicates that a prior conviction can be taken into account twice—once as an element of an offense in § 2L1.2(b)(1) and again as part of a defendant's criminal history. But the Note does not indicate that the definition of sentence length, for purposes of criminal history, is the same as the definition for purposes of offense conduct.

Nothing else in the texts of the two chapters indicates that a definition contained in § 4A1.2(k)(1) should be applied to a phrase in § 2L1.2(b)(1). The Introductory Commentary to Chapter Two specifically refers to and incorporates Part B of Chapter Four, stating, "Certain factors relevant to the offense that are not covered in specific guidelines in Chapter Two are set forth in ... Chapter Four, Part B (Career Offenders and Criminal Livelihood)...." But nowhere in the Introductory Commentary is there any reference to Chapter Four, Part A (Criminal History), in which § 4A1.2(k)(1) appears. Further, no language anywhere in Chapter Four indicates that the definition contained in § 4A1.2(k)(1) is intended to be applied outside of Chapter Four.

Third, and finally, the majority relies on our decision in United States v. Jimenez, 258 F.3d 1120 (9th Cir.2001). The obvious (and insuperable) problem with relying on Jimenez is that it did not construe § 2L1.2(b)(1), but, rather, 8 U.S.C. § 1101(a)(43)(F). When Jimenez was decided, § 2L1.2 contained no definition of sentence length. Rather, it relied on statutory definitions to give a 16-level increase for aggravated felonies and a 4-level increase for other convictions. See U.S.S.G. § 2L1.2 (2000) (superceded). The statute defines an "aggravated felony" as including "a crime of violence ... for which the term of imprisonment [is] at least one year," 8 U.S.C. § 1101(a)(43)(F), and it defines "term of imprisonment" as "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." Id. § 1101(a)(48)(B) (emphasis added). Several circuits have relied on the explicit text of the statute to hold that a suspended sentence is included in a "term of imprisonment" for purposes of an aggravated felony. See United States v. Pacheco, 225 F.3d 148, 154 (2d Cir.2000); United States v. Tejeda-Perez, 199 F.3d 981, 982 (8th Cir.1999); United States v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999).

In contrast to its explicit inclusion of a suspended sentence in the definition of "term of imprisonment," the statute says nothing about a sentence imposed as a result of a violation of probation. Despite the statutory silence, we held in Jimenez that such a sentence is also included in a "term of imprisonment." See 258 F.3d at 1125 ("The fact that this term of imprisonment was not imposed until after [the defendant] violated his probation is not legally significant."). We are the only circuit to have so held. Cf. United States v. Guzman-Bera, 216 F.3d 1019, 1020-21 (11th Cir.2000) (stating hypothetically that a sentence imposed because of a probation violation might count as part of the "term of imprisonment" if imposed prior to deportation and illegal reentry, but holding on the facts of the case that the sentence did not count because imposed after reentry).

After several circuits held that the statutory phrase "term of imprisonment" includes suspended sentences, and after we held in Jimenez that it also includes sentences imposed because of probation violations, the Sentencing Commission amended § 2L1.2. The amended Guideline retains an enhancement for a generic aggravated felony, but that enhancement is now reduced from 16 levels to 8. U.S.S.G. § 2L1.2(b)(1)(C). Further, the Guideline now treats separately, for the first time, more and less serious drug trafficking offenses. If the defendant has previously been convicted of a drug trafficking offense for which the "sentence imposed" was more than 13 months, a 16-level enhancement is applied; if it was 13 months or less, a 12-level enhancement is applied. Id. § 2L1.2(b)(1)(A)-(B). The 16- or 12-level enhancement imposed in drug trafficking cases is in lieu of the 8-level enhancement for a generic aggravated felony. Id. § 2L1.2(b)(1).

In the amended Guideline, the Commission deliberately chose a new phrase to denote the measure of sentence length for drug trafficking offenses. The statutory phrase, used to distinguish between generic aggravated and non-aggravated felonies, was (and is) "term of imprisonment." This is the phrase we construed in Jimenez. However, the new Guideline phrase, used to distinguish between more and less serious drug trafficking offenses, is "sentence imposed."

The Sentencing Commission was fully aware of the change it was making. In amending § 2L1.2, the Commission explicitly rejected an initial proposal that would have used total time actually served as the measure of sentence length. See Sentencing Guidelines for the United States Courts, 66 Fed.Reg. 7962, 8009 (proposed Jan. 26, 2001); Minutes of the April 6, 2001 U.S. Sentencing Commission Business Meeting, U.S.S.G. § 2L1.2(b)(1). After rejecting the initial proposal, the Commission, clearly focused on this particular text, could have borrowed from the statute the phrase "term of imprisonment," which this court and others had already construed. It did not. Instead it adopted a new phrase, "sentence imposed," and provided a carefully tailored definition of that phrase excluding any portion of a sentence that was "probated, suspended, deferred, or stayed." Application Note 1(A)(iv).

The majority relies on Jimenez and concludes that the distinction between the statutory phrase "term of imprisonment" and the new Guideline phrase "sentence imposed" is inconsequential. But this conclusion is untenable. The Sentencing Commission's explicit definition of "sentence imposed" as excluding any suspended portion of the sentence is simply inconsistent with Congress's explicit definition of "term of imprisonment" as including any suspended portion of a sentence. I find it difficult to believe that the Commission adopted a new Guideline phrase, which it explicitly defined differently from the old statutory phrase, because it intended the former to carry the same meaning as the latter.

This is (or should be) an easy case. The amended Guideline, § 2L1.2(b)(1) contains a new phrase, "sentence imposed," that is carefully defined in Application Note 1(A)(iv). The phrase, as defined in the Note, has a plain meaning that excludes suspended sentences. I regret that the majority is unwilling to follow that plain meaning.

Notes:

It is likely that Moreno-Cisneros also received a "probated" sentence within the meaning of the Guideline. The California sentencing court "suspended" the sentence for three years and also subjected him to probation for the same three-year period. In the pre-Guidelines federal system, probated and suspended sentences were essentially the same, since suspension was simply a procedural step on the way to imposing probationUnited States v. Ayala-Gomez, 255 F.3d 1314, 1317-18 (11th Cir.2001) (citing 18 U.S.C. § 3651 (1982) (permitting a court to suspend imposition of a sentence and place a defendant on probation), repealed by Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 212(a)(2), 98 Stat.1945, 1987). In some state systems, there is a distinction between suspended and probated sentences. See id. at 1318 (noting that in Georgia probated and suspended sentences, though similar, are not equivalent). For purposes of this case, we need not consider what, if any, distinction California draws between suspended and probated sentences. Even if Moreno-Cisneros's three-year sentence was probated as well as suspended at the time of sentencing, the essential points of agreement and disagreement between the majority and me remain the same. We agree that at the time of sentencing, the suspended (and possibly probated) sentence did not count as part of the "sentence imposed" within the meaning of the Guideline. We disagree on the status of the sentence imposed as a result of the violation of probation, and our disagreement does not hinge on whether the later-imposed sentence is characterized as a previously suspended or previously probated sentence.