UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50511 __________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FRANCISCO VASQUEZ-BALANDRAN,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the Western District of Texas ______________________________________________
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 enhancement
provision. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On May 12, 1995, Jose 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 after 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 argued, 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 receives
1 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 Justice- Institute Division for ten (10) years and a fine of $0 . . . The imposition of the above sentence (and fine) is suspended and the Defendant is placed on adult probation under the terms and conditions set out in Exhibit "A" hereto attached.
(emphasis added).
2 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 the 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. United 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 conviction 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 years." § 2L1.2, comment. (n.7).2
2 Congress defined "crime of violence" to mean:
(a)n offense that has an element the use, attempted use, or threatened 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 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 violence. He argues that the 16-
level enhancement 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 sentence was not
imposed.3
Texas law did distinguish between "assessing" and "imposing"
a sentence in the context of granting probation under the former
version of Art. 42.12, § 3 V.A.C.C.P, which was in effect at the
time that Vasquez committed the robbery. McCullar 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 interpretation, 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 conviction when we apply the federal sentence-enhancement
used 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 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. See
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
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50511 __________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FRANCISCO VASQUEZ-BALANDRAN,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the Western District of Texas ______________________________________________
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 enhancement
provision. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On May 12, 1995, Jose 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 after 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 argued, 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 receives
1 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 Justice- Institute Division for ten (10) years and a fine of $0 . . . The imposition of the above sentence (and fine) is suspended and the Defendant is placed on adult probation under the terms and conditions set out in Exhibit "A" hereto attached.
(emphasis added).
2 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 the 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. United 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 conviction 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 years." § 2L1.2, comment. (n.7).2
2 Congress defined "crime of violence" to mean:
(a)n offense that has an element the use, attempted use, or threatened 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 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 violence. He argues that the 16-
level enhancement 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 sentence was not
imposed.3
Texas law did distinguish between "assessing" and "imposing"
a sentence in the context of granting probation under the former
version of Art. 42.12, § 3 V.A.C.C.P, which was in effect at the
time that Vasquez committed the robbery. McCullar 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 interpretation, 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 conviction when we apply the federal sentence-enhancement
used 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 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. See
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 intend 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 provision'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 differently because of
5 this anomalous requirement.
Contrary to Vasquez's assertion, Texas did (and still does)
have a provision that allowed a defendant to be placed on probation
(now "community supervision") without first assessing 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 Texas 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 suspension of such
imprisonment" indicates that the Commission intended that
defendants who had a previously determined (whether it is called
imposed or assessed) period of incarceration of at least five years
would receive the aggravated felony enhancement 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 In
4 Further, in the similar context of adding points to a
6 the context of enhancing a defendant's sentence under § 2L1.2,5 we
find that there 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 applicability to extend to those
defendants who actually are ordered to serve their sentences and
also those defendants who avoid a determined period of
incarceration 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 suspended. In the instant case,
Vasquez would have had to serve the determined period of
confinement but for the probation order that suspended its
imposition. Accordingly, we hold that the district court properly
applied the enhancement under § 2L1.2.
AFFIRMED.
defendant's criminal history category for a prior conviction under § 4A1.2(a)(3), the Sentencing Commission treated a sentence in which the court suspended imposition the same as a sentence in which the court suspended the execution. See § 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 without permission after being deported based on an aggravated felony.