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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-40903

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO BANDA-ZAMORA
Defendant-Appellant

Appeal from the United States District Court
For the Southern District of Texas

June 16, 1999
Before POLITZ, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This appeal of a sentence turns on whether a prior offense
counts as an aggravated felony. The defendant, Juan Antonio Banda-
Zamora, had been convicted in Texas of aggravated assault and then
deported. Found again in the United States, he was charged with
reentry and pleaded guilty. Based on the presentence report's
statement that Banda had received a sentence of "10 years
probation" for the aggravated assault conviction, the district
court increased Banda's offense level by 16 levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(A). Banda argues that § 2L1.2(b)(1)(A) is
unconstitutionally vague and, if not vague, inapplicable.
I

Section 2L1.2(b)(1)(A) authorizes a 16-level enhancement for
unlawfully entering or remaining in the United States when the
defendant previously was deported after a conviction for an
"aggravated felony." The commentary defines "aggravated felony" by
reference to 8 U.S.C. § 1101(a)(43), which in turn defines
"aggravated felony" to include "a crime of violence . . . for which
the term of imprisonment [sic] at least one year." Both parties
agree that Banda-Zamora's prior conviction was for a crime of
violence, so we need consider only the phrase "for which the term
of imprisonment at least one year."
This phrase is missing a verb. The United States Code
Annotated indicates that the missing verb is probably "is," see 8
U.S.C.A. § 1101, at 73 (1999), and the legislative history confirms
this suggestion. Before an amendment in 1996, the phrase read "for
which the term of imprisonment imposed (regardless of any
suspension of imprisonment) is at least 5 years." 8 U.S.C.A. § 1101
(1995). The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, § 321(a)(3), 110
Stat. 3009, 546, 627-28 (1997), amended the provision "by striking
`is at least 5 years' each place it appears and inserting `at least
one year.'"
This
drafting
snafu
does
not
make the statute
unconstitutionally vague. The defendant seizes on a Supreme Court
dictum that "vague sentencing provisions may pose constitutional
questions if they do not state with sufficient clarity the
consequences of violating a given criminal statute." United States
2

v. Batchelder, 442 U.S. 114, 123 (1979). This, however, cannot
mean that any ambiguity dooms a Sentencing Guidelines provision.
Many legal provisions are ambiguous, and our job is to interpret
them as best we can.
A missing word is not a fatal ambiguity. Consider United
States v. Evans, 333 U.S. 483 (1948), which Blatchelder cites as an
example of a case with too vague a sentencing provision. The
statute criminalized two types of activity, but appeared to
penalize only one of them. See id. at 484-85. The Court rejected
the assumption that the penalty applied to both parts of the
statute, and was thus left with a criminal prohibition with no
sentencing range whatsoever. That the Court refused to invent a
penalty does not mean that the ambiguity here makes the provision
unconstitutionally vague. Crafting a punishment is different from
filling in a missing, but readily deducible, word. Indeed, the
Evans Court noted, "If only imperfect grammar stood in the way, the
construction might be accepted." Id. at 487. The Constitution does
not outlaw bad grammar.
II
Before the passage of the IIRIRA, we scrutinized the wording
of judgments that mentioned both probation and suspension of
sentence. Compare United States v. Vasquez-Balandran, 76 F.3d 648
(5th Cir. 1996) (finding a suspension of sentence where a court
first ordered confinement but later indicated that the term of
imprisonment should be suspended in favor of probation), with
United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997)
3

(finding probation where an order of confinement was "next to" a
suspension of sentence and substitution of probation). As the
government conceded at oral argument, both cases recognize that
when a defendant is directly sentenced to probation, with no
mention of suspension of a term of imprisonment, there has been no
suspension of a term of imprisonment.
The IIRIRA need cause no reworking of this area of doctrine.
The Act deleted "imposed (regardless of any suspension of
imprisonment)," and added a new 8 U.S.C. § 1101(a)(48)(B), which
provides: "Any reference to a term of imprisonment or a sentence
with respect to an offense is deemed to include 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." IIRIRA § 322(a), 110
Stat 3009 at 628-29.1 Because § 1101 offers a series of
definitions applicable to the entire chapter, the definition in §
1101(a)(48)(B) applies recursively to the definition in §
1101(a)(43)(F). Thus, when a court does not order a period of
incarceration and then suspend it, but instead imposes probation
directly, the conviction is not an "aggravated felony."
1This language does clarify that both a suspension of the
"imposition" of imprisonment and a suspension of the "execution" of
the imprisonment count as suspended sentences. For us, this is
nothing new. We previously rejected what amounts to the same
distinction, dubbing it the difference between a sentence
"assessed" and a sentence "imposed" before being suspended. See,
e.g., United States v. Valdez-Valdez, 143 F.3d 196, 198 (5th Cir.
1998). This clarification has no application to the facts before
us.
4

The state court judgment is not in the record. We thus vacate
and remand to give the government a chance to show that the PSR's
reference to a sentence of "10 years probation" referred to a
sentence of imprisonment that was suspended in favor of probation.
If the government meets this burden, the district court must
determine which of Vasquez-Balandran and Herrera-Solorzano
controls. Otherwise, the district court should not apply the 16-
level increase and must consider only whether the conviction was
for "any other felony" under § 2L1.2(b)(1)(B).
VACATED AND REMANDED.
5