United States of America v. Jose Garcia-Quintanilla

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-50400
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE GARCIA-QUINTANILLA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
An immigration judge ordered Appellant Jose Garcia-Quintanilla, a
Salvadoran native and citizen, removed to El Salvador. As a necessary step in
his removal, Garcia-Quintanilla needed to interview with Salvadoran officials.
He refused, however, to participate in such an interview, insisting that he would
rather spend his life in a United States prison than return to El Salvador. As
a result, Garcia-Quintanilla was convicted of failing to depart under 8 U.S.C.
§ 1253.
In light of Garcia-Quintanilla’s insistence that he would never cooperate
in his removal, the district court fashioned a unique sentence. The court
sentenced Garcia-Quintanilla to the statutory maximum of four years’
United States Court of Appeals
Fifth Circuit
F I L E D
July 7, 2009
Charles R. Fulbruge III
Clerk

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imprisonment, a sentence eight times greater than his Guidelines-recommended
maximum of six months. The district court also reserved the right to later
suspend Garcia-Quintanilla’s sentence—even after the sentence had begun—if
he decided to cooperate in his removal. Garcia-Quintanilla now appeals this
sentence.
We must decide whether § 1253(a)(3) authorizes the suspension of a
failure-to-depart sentence after the sentence has begun. We hold that it does
not, as we find nothing in the statute indicating that Congress intended to give
courts this unique suspension power. Because the district court sentenced
Garcia-Quintanilla to the statutory maximum under the mistaken belief that it
could later suspend this sentence, we vacate his sentence and remand for
resentencing.
I. BACKGROUND
Born in El Salvador, Garcia-Quintanilla entered the United States in 1987
at the age of sixteen. Almost twenty years later, immigration authorities
arrested Garcia-Quintanilla, and an immigration judge ordered him removed to
El Salvador. Before he could be removed, Garcia-Quintanilla needed to speak
with officials in the Salvadoran consulate. Without this interview, the consulate
would not issue Garcia-Quintanilla the travel documents necessary to complete
his removal. Apparently believing that he was legally in the country, Garcia-
Quintanilla refused to participate in this interview. Immigration authorities
attempted to explain to him the necessity of speaking with consular officials as
well as the potential criminal consequences of his actions. Still, Garcia-
Quintanilla persisted in his refusal.
The Government then charged Garcia-Quintanilla with willfully failing
and refusing to make a timely application for necessary travel documents in
violation of 8 U.S.C. § 1253(a)(1)(B). Up until the eve of trial, the Government
offered to drop the charges if Garcia-Quintanilla would cooperate in his removal.

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Garcia-Quintanilla refused these offers, and a jury later found him guilty.
With an offense level of eight and no criminal history, Garcia-Quintanilla’s
Guidelines-recommended sentence was zero-to-six months’ imprisonment. His
presentence report gave no reason to deviate from this range. The Government
moved for an upward variance, however, due to what it characterized as Garcia-
Quintanilla’s blatant disregard for immigration laws. It asked the district court
to impose the statutory maximum of four years, suggesting that such a sentence
would deter Garcia-Quintanilla from persisting in his refusal to speak with the
Salvadoran consulate. Acknowledging the harshness of such an extreme
variance, the Government justified the sentence by suggesting that
§ 1253(a)(3)—the statute’s suspension provision—would mitigate this harshness.
As discussed further below, § 1253(a)(3) permits a district court to suspend a
failure-to-depart sentence and includes a non-exhaustive list of considerations
for determining whether suspension is proper. The Government focused on
§ 1253(a)(3)(D), which requires consideration of “the character of the efforts
made by [the] alien himself . . . to expedite the alien’s departure from the United
States.” According to the government, § 1253(a)(3)(D) authorized suspension of
Garcia-Quintanilla’s sentence if he ever decided to cooperate in his removal and
interview with the Salvadoran consulate. In the Government’s words, Garcia-
Quintanilla would “hold the keys to his own cell.”
At sentencing, the district court expressed concern over Garcia-
Quintanilla’s refusal to cooperate in his removal. The court stated,
My concern . . . is he’ll serve, let’s say, if I go with the six months at
the top of the Guidelines, and the range is six months, and then we
go through this whole charade over again, affording him his day in
court, affording him his jury trial. And I guess the—the Guidelines
would change, in terms of criminal history, certainly, with this. But
is it a smart use of resources to continue to prosecute it piecemeal
when, in fact, one can accomplish the very thing that could be of the
best benefit to [Garcia-Quintanilla], should he decide to simply

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comply with the process and be removed pursuant to the order of
the immigration judge?
The district court attempted to fashion a sentence that would either incentivize
Garcia-Quintanilla to cooperate in his removal or mitigate the cost of repeatedly
trying him for nearly-identical offenses. The court found the tool for such a
sentence in § 1253(a)(3), agreeing with the Government that § 1253(a)(3)(D)
allowed the suspension of Garcia-Quintanilla’s sentence were he to ever
cooperate. Of particular importance, the district court believed that it could use
this suspension power even after the sentence of imprisonment began.
Thus, instead of the Guidelines-recommended sentence of zero-to-six
months, the district court sentenced Garcia-Quintanilla to the statutory
maximum and reserved the right to suspend that sentence. Were Garcia-
Quintanilla to decide to cooperate, the district court would suspend his sentence
and release Garcia-Quintanilla to the custody of immigration authorities. This
could apparently occur at any time after the sentence began; Garcia-Quintanilla
could leave prison after six months—indeed, after six days—and the upward
variance would thus be irrelevant. If, on the other hand, he persisted in his
refusal, he would remain imprisoned for the full four years, maximizing the time
between trials.
II. STANDARD OF REVIEW
Garcia-Quintanilla argues only that the district court erred in holding that
§ 1253(a)(3) permitted suspension of his sentence after he began serving it. The
Government contends that Garcia-Quintanilla did not raise this issue below,
which would require us to review the sentence for plain error. We agree with the
Government. Although Garcia-Quintanilla made a general objection to the
legality of his sentence, this objection was insufficient to place the district court
on notice of the issue he now raises.
We therefore review only for plain error. Under this standard of review,

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the defendant must show (1) an error, (2) that the error was clear, and (3) that
the error affected the defendant’s substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If the defendant establishes these three
requirements, we may exercise our discretion to address that error so long as it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
As to the underlying error, we review Garcia-Quintanilla’s sentence for
reasonableness, asking whether the district court abused its discretion. See Gall
v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2008); United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A district court abuses its
discretion if it bases a decision on an error of law. United States v. Castillo, 430
F.3d 230, 238 (5th Cir. 2005). We review issues of law, including statutory
interpretation, de novo. United States v. Jackson, 559 F.3d 368, 370 (5th Cir.
2009); United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).
III. DISCUSSION
In sentencing Garcia-Quintanilla, the district court may have found a
reasonable and practical method for resolving a legitimate issue. But this
approach has one potential pitfall: as Garcia-Quintanilla asserts, Congress did
not intend for § 1253(a)(3) to authorize the suspension of a failure-to-depart
sentence after that sentence has begun. The Government retorts with two
theories. It first reads § 1253(a)(3) to expressly allow district courts to suspend
a failure-to-depart sentence at any time. Under this reading, a failure-to-depart
sentence itself can potentially include conditions of suspension. Alternatively,
the Government directs us to 18 U.S.C. § 3582(c)(1)(B), which allows district
courts to modify a term of imprisonment once it has been imposed when
“expressly permitted by statute.” The Government contends that § 1253(a)(3)
is one of the statutes that § 3582(c)(1)(B) contemplates, i.e., § 1253(a)(3)
expressly permits district courts to modify a term of imprisonment. We address

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Garcia-Quintanilla seems to suggest that district courts may never suspend a failure-1
to-depart sentence under § 1253(a)(3), as the Sentencing Reform Act of 1984, Pub. L. No.
98-473, 98 Stat. 1987, took from district courts the ability to order a term of probation by
suspending the imposition or execution of a sentence. See U.S. SENTENCING GUIDELINES
MANUAL ch. 7, pt. A, introductory cmt. 2(a) (“The statutory authority to ‘suspend’ the
imposition or execution of sentence in order to impose a term of probation was abolished upon
implementation of the sentencing guidelines. Instead, the Sentencing Reform Act recognized
probation as a sentence in itself.”). We need not decide this issue. The only question in the
present case is whether § 1253(a)(3) permits suspension after a sentence has begun; we can
simply and safely assume that § 1253(a)(3) authorizes suspension up to the moment when a
sentence begins. We note, however, our serious doubt as to Garcia-Quintanilla’s suggestion.
As discussed further below, Congress enacted § 1253(a)(3) after the Sentencing Reform Act.
Although the Sentencing Reform Act repealed the former 18 U.S.C. § 3651, which gave district
courts the general power to suspend the imposition or execution of a sentence and order
probation, we doubt that the Sentencing Reform Act somehow prospectively abrogated the
later-enacted § 1253(a)(3).
6
each argument in turn.
A. Section 1253(a)(3)
The Government first contends that § 1253(a)(3) expressly authorizes
district courts to suspend a failure-to-depart sentence. As a general matter, this
is probably correct; the statute clearly contemplates suspension in some
circumstances. But the question in this appeal is when that power to suspend1
exists and when it does not.
The Government sees no temporal limit in § 1253(a)(3), essentially reading
the statute as authorizing a district court to include terms of suspension as part
of the initial sentence. Under this reading, a district court could sentence a
defendant to a term of imprisonment but—as part of the sentence—reserve the
right to suspend that sentence under certain circumstances (as the district court
did in the present case). Thus, so long as suspension is part of the sentence
itself, suspension at any time is merely an enforcement of the original terms of
the sentence. Garcia-Quintanilla disagrees, contending that § 1253(a)(3) does
not permit a district court to suspend a sentence after that sentence has begun.
Under Garcia-Quintanilla’s interpretation of § 1253(a)(3), suspension may take
place only before the sentence begins (if ever).

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We must therefore decide when Congress intended § 1253(a)(3) to apply.
The text of § 1253(a)(3) is unhelpful in answering this question. Although we
always begin with a statute’s text, the present statute says nothing about when
it applies. Section 1253(a)(3) provides:
The court may for good cause suspend the sentence of an alien
under this subsection and order the alien’s release under such
conditions as the court may prescribe. In determining whether good
cause has been shown to justify releasing the alien, the court shall
take into account such factors as—
(A) the age, health, and period of detention of the alien;
(B) the effect of the alien’s release upon the national security and
public peace or safety;
(C) the likelihood of the alien’s resuming or following a course of
conduct which made or would make the alien deportable;
(D) the character of the efforts made by such alien himself and by
representatives of the country or countries to which the
alien’s removal is directed to expedite the alien’s departure
from the United States;
(E) the reason for the inability of the Government of the United
States to secure passports, other travel documents, or removal
facilities from the country or countries to which the alien has
been ordered removed; and
(F) the eligibility of the alien for discretionary relief under the
immigration laws.
None of this language clearly addresses when § 1253(a)(3) is to apply. On its
face, then, § 1253(a)(3) does not speak to whether it permits suspension before
a sentence has begun, after a sentence has begun, or both. Consequently, the
plain text of the statute does not answer our question.
Nor is § 1253(a)(3)’s legislative history particularly helpful in determining
when Congress intended suspension to apply. Congress enacted § 1253(a)(3) as
part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546. It appears that the IIRIRA

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merely reformatted and slightly changed the language of the old 8 U.S.C.
§ 1252(e), which Congress had enacted as part of the Immigration and
Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163. See United States v.
Sanchez-Mota, 319 F.3d 1, 4 (1st Cir. 2002) (noting that “the substance of
[§ 1253(e)] is now contained in 8 U.S.C. § 1253(a)”). The parties have found
nothing in the history of either statute that would illuminate the present
inquiry, and our own search was equally fruitless.
Thus, both the text and history of § 1253 are facially unhelpful. We find
them informative, however, when we consider the historical practice of sentence
suspension. Particularly illuminating is the Probation Act of 1925, Pub. L. No.
68-596, 43 Stat. 1259. Before the sentencing reforms of the 1980s, the Probation
Act gave district courts the discretion to order probation in lieu of a fine or term
of imprisonment. They did so by suspending either the imposition or execution
of a sentence. See 3 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 529, at 292 (3d ed. 2004) (“If the court determined to give
probation, it either imposed a sentence, suspended its execution, and placed the
defendant on probation, or, in the alternative, it suspended the imposition of
sentence and placed the defendant on probation.”). Suspension was therefore an
integral part of a federal court’s ability to order probation for a criminal offense.
Two characteristics of the Probation Act inform the present issue. First,
Congress passed the Act in response to the Supreme Court’s decision in Ex parte
United States, 242 U.S. 27 (1916), commonly known as the Killits Case. Therein,
the Supreme Court held that federal district courts have no inherent authority
to suspend a sentence and order probation. Id. at 41–52. According to the Killits
Court, only Congress had the power to define the punishment for a crime. Id.
at 42. Consequently, only Congress could authorize courts to order probation.
Id. Absent congressional authorization, then, federal courts were powerless to
suspend a criminal sentence and order probation.

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Second, and more importantly, the Supreme Court later interpreted the
Probation Act to permit suspension of a sentence only before that sentence had
begun. The Court initially confronted this issue in United States v. Murray, 275
U.S. 347, 350–51 (1928), in which a district court had suspended a defendant’s
sentence one day after he began serving it. The Court held that this suspension
was improper, as “[t]he beginning of the service of the sentence in a criminal
case ends the power of the court . . . to change it.” Id. at 358. Similarly, in
Affronti v. United States, 350 U.S. 79, 79 (1955), a defendant received four
consecutive five-year sentences. Midway through serving the first sentence, the
defendant asked the district court to suspend his remaining sentences and order
probation. Id. at 80. The district court held that it could not suspend a sentence
after the defendant begins serving any part of it, and the Supreme Court agreed.
Id. at 80, 83. The Court held that the power granted by the Probation Act
“ceases with respect to all of the sentences composing a single cumulative
sentence immediately upon imprisonment for any part of the cumulative
sentence.” Id. at 83. Thus, once the defendant began serving any one of his
sentences, the district court lacked the authority to suspend his cumulative
sentence. Id.; see also United States v. Karp, 764 F.2d 613, 615 (9th Cir. 1985)
(noting that “the sentencing court has had the power since 1925 to order
probation for a convicted defendant at any time before the execution of the
pronounced but unexecuted sentence begins” (emphasis added)).
The historical practice of suspension thus provides important context
when interpreting § 1253(a)(3). The Killits Case teaches us that only Congress
can define federal courts’ power to suspend a criminal sentence. In other words,
district courts have only the power to suspend a failure-to-depart sentence that
Congress intended. Further, Murray and Affronti indicate that, historically,

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Federal sentencing has no doubt changed since Murray and Affronti. For example,2
federal parole has been eliminated, and the practice of probation is substantially different.
But both Murray and Affronti provide important context for understanding sentence
suspension. Moreover, Congress enacted § 1253(a)(3)’s substantially-identical precursor—the
former 8 U.S.C. § 1252(e)—as part of the Immigration and Nationality Act of 1952, three years
before the Supreme Court decided Affronti and well before the sentencing reforms of the
1980s. We must therefore assume that, at the time Congress enacted the substance of
§ 1253(a)(3), it was aware that the Court had interpreted the Probation Act to allow
suspension only before a sentence begins.
10
suspension could only take place before a defendant began serving a sentence.2
Murray and Affronti thereby establish a baseline against which we can evaluate
a statutory suspension provision: in the normal course of things, suspension
occurs only before the beginning of a sentence.
Because of this norm, we would expect a relatively clear indication from
Congress when it intends for a district court’s suspension power to deviate from
the norm, i.e., to extend beyond the commencement of a sentence. Thus, if
Congress intended for § 1253(a)(3) to permit the suspension of a sentence after
it has begun, we might expect Congress to say explicitly that a court may
suspend a sentence before or after its execution, or we might expect the outlines
of a procedure for bringing to the court’s attention the circumstances that
warrant a suspension after the sentence has begun.
Looking to § 1253(a)(3), however, we find no evidence that Congress
intended to allow suspension after a sentence begins. Indeed, nowhere in
§ 1253(a)(3) is there any indication that Congress intended for district courts to
suspend a sentence in anything but the normal course of events. Instead,
§ 1253(a)(3) appears to focus entirely on suspension at the time of sentencing.
Subsection (a)(3) provides that a “court may for good cause suspend the sentence
of an alien under this subsection and order the alien’s release under such
conditions as the court may prescribe.” It then lists several considerations for
determining whether “good cause” exists, and these resemble general sentencing
considerations. Section 1253(a)(3)(A), for example, includes an alien’s age and

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period of detention. While these make sense at the time of sentencing, they
would be an odd consideration for a later modification. If a district court does
not want to imprison a defendant past a certain age, then it should impose a
lower sentence in the first place, not revisit the sentence once the defendant
reaches that age. Similarly, subsections (D) and (E) direct a district court to
consider whether the alien’s departure has been impeded by the conduct of the
United States or the country to which the alien is being deported. These
subsections address situations in which, for reasons outside of the alien’s control,
she cannot leave the country. As it would be inequitable to imprison someone
for reasons outside of her control, these subsections allow district courts to
suspend an alien’s sentence instead of sending her to jail for the failures of
others.
Granted, in addition to being relevant at the time of sentencing, some of
these considerations might be relevant in assessing whether an alien’s sentence
should later be suspended (e.g., the alien’s health, which could deteriorate while
imprisoned). But there is nothing among them to suggest that Congress
intended for district courts to be able to suspend a failure-to-depart sentence
after it has begun. And because there is nothing in § 1253(a)(3) to indicate that
Congress intended to deviate from the baseline of sentence suspension, we must
presume that Congress intended § 1253(a)(3) to provide for suspension when
suspension has normally occurred.
The structure of the failure-to-depart statute reinforces our reading of
§ 1253(a)(3). The provision governing suspension falls under § 1253’s
subsection (a), entitled “Penalty for failure to depart.” The other parts of
subsection (a) deal primarily with conviction for a failure-to-depart offense;
subsection (a)(1) outlines the ways in which one can commit the offense, and
subsection (a)(2) provides something of an affirmative defense. Subsection (a)(3)
follows immediately thereafter to finish subsection (a). The statute goes from

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offense, to affirmative defense, to sentencing, and thus focuses on the
commission, conviction, and sentencing for the crime. Nowhere among this
section is any indicium of a procedure for reviewing or revisiting a previously-
imposed sentence.
Finally, the general purposes of sentence suspension comport with our
interpretation of § 1253(a)(3). As Chief Justice Taft stated in Murray,
suspension provides “an opportunity for reform and repentance . . . before actual
imprisonment should stain the life of the convict.” 275 U.S. at 357. Along these
lines, § 1253(a)(3) permits a district court to give an alien one last opportunity
to cooperate in her removal before the Government must bear the cost of
imprisonment. The district court might hope that, when faced with the reality
of impending imprisonment, an alien would finally appreciate the consequences
of her actions and take any necessary remedial steps. This is of course not the
only reason why a district court might choose to suspend a failure-to-depart
sentence. But it is a reason that comports with the historical practice of
suspension.
Consequently, although § 1253(a)(3) allows for the suspension of a
sentence, there is nothing to indicate that this suspension is to take place under
anything but normal circumstances, i.e., before a sentence begins. There is
therefore nothing in § 1253 that empowers a district court to “reserve” the
authority to later suspend a failure-to-depart sentence.
B. Section 3592(c)(1)(B)
For many of the same reasons, we reject the Government’s argument that
§ 1253(a)(3) expressly permits the modification of a term of imprisonment in
accordance with 18 U.S.C. § 3582(c)(1)(B). Section 3582(c)(1)(B) authorizes
district courts to modify a previously-imposed term of imprisonment when
“expressly permitted by statute.” Decisions from other courts suggest that
28 U.S.C. § 2106—the statute authorizing resentencing on remand from an

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appeal—falls within this purview, as do those statutes governing resentencing
after post-conviction relief. See, e.g., United States v. Penson, 526 F.3d 331, 335
(6th Cir. 2008); United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001); United
States v. Triestman, 178 F.3d 624, 629 (2d Cir. 1999); United States v. Rodriguez,
112 F.3d 26, 29 (1st Cir. 1997). Unlike those statutes, § 1253(a) does not
expressly contemplate, either in its text or context, the modification of a
previously-imposed sentence. Although the text addresses the suspension of a
sentence, it is far from clear that § 1253(a)’s suspension provision allows a court
to revisit a previously-imposed sentence. As discussed in the previous section,
the more natural reading of § 1253(a)’s suspension provision is that it applies
before a sentence begins. Therefore, § 1253(a)(3) does not expressly permit a
district court to modify the term of a previously-imposed sentence.
C. Plain Error
The district court erred in interpreting § 1253(a)(3). This does not end our
inquiry, however, due to our plain error standard of review. Again, before we
can exercise our discretion to correct this error, Garcia-Quintanilla must
establish that this error was plain and affected his substantial rights. We hold
that he has met this burden.
First, this error was plain. Section 1253(a)(3) provides no basis for the
suspension of a failure-to-depart sentence after it begins. Granted, there was no
caselaw suggesting that such a suspension was prohibited, just as there was no
caselaw suggesting that it was permitted. But, as detailed above, it has long
been the law that district courts cannot suspend a criminal sentence after it has
begun. This error did not, therefore, merely rest on a misinterpretation of a
statute. It also represented a substantial step beyond the district courts’
traditional authority as defined by the Supreme Court. See Affronti, 350 U.S.
79; Murray, 275 U.S. 347. The district court plainly erred in finding § 1253(a)(3)
to be a sufficient basis for such a unique power.

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Second, this error affected Garcia-Quintanilla’s substantial rights. In
making this determination, we ask whether the error affected the outcome of the
district court proceedings. See United States v. Maturin, 488 F.3d 657, 663 (5th
Cir. 2007). In the sentencing context, we often ask whether the error increased
the term of a sentence, such that there is a reasonable probability of a lower
sentence on remand. See, e.g., United States v. Moreno-Florean, 542 F.3d 445,
457 (5th Cir. 2008); United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th
Cir. 2008); United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005). In
the present case, the district court sentenced Garcia-Quintanilla to four years’
imprisonment—eight-times greater than his Guidelines-recommended maximum
of six months—based on the erroneous belief that it could later suspend the
sentence. And the possibility of suspension was an essential aspect of this
sentence. As discussed above, in addition to punishing him for his disregard of
immigration laws, the district court wanted to provide Garcia-Quintanilla with
an appropriate incentive to cooperate in his removal. It therefore imposed the
maximum sentence, with the necessary caveat that it could suspend the
sentence if Garcia-Quintanilla chose to cooperate. In essence, the sentence was
akin to civil contempt; Garcia-Quintanilla would be punished until he decided
to do what the Government wanted. A necessary part of this sentence, then, was
the possibility of suspension. Without it, the sentence would not have the
desired effect. Because the possibility of suspension was so central to the
sentence that Garcia-Quintanilla received, we cannot confidently say that the
district court would have imposed the same sentence under our interpretation
of § 1253(a)(3). Consequently, the error affected Garcia-Quintanilla’s substantial
rights.
Finally, we believe that the error seriously affects the integrity and
fundamental fairness of judicial proceedings. This is due not only to the length
of Garcia-Quintanilla’s erroneously-imposed sentence, the magnitude of which

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might itself be sufficient under many of our prior decisions. See, e.g., United
States v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008) (holding that an error
affected the fairness of judicial proceedings when it resulted in a sentence over
two times longer than the proper Guidelines range). We also find it important
that, were we not to correct the error, the end result would be a sentence that no
one ever intended and which the court lacked the power to craft as it did. Again,
the possibility of suspension was an essential aspect of Garcia-Quintanilla’s
sentence. The district court thus expressly contemplated that Garcia-
Quintanilla could be serving a shorter sentence—perhaps substantially
shorter—than that which it actually imposed. But suspension is no longer an
option. Absent correction, then, Garcia-Quintanilla would serve a four-year
sentence without the possibility of suspension. Even under its erroneous
interpretation of § 1253(a)(3), the district court did not intend such a sentence.
We therefore exercise our discretion to correct this error and vacate Garcia-
Quintanilla’s sentence.
IV. CONCLUSION
We hold that § 1253(a)(3) does not authorize a district court to suspend a
failure-to-depart sentence after the alien has begun serving that sentence.
Consequently, the district court’s sentencing of Garcia-Quintanilla was
erroneous. Moreover, Garcia-Quintanilla has satisfied the requirements of plain
error review. We therefore VACATE the sentence and REMAND for
resentencing.
VACATED and REMANDED.

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