United States v. Canoa-Corrales

294 F. App'x 165

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 30, 2008
• Docket: 07-41207
• Status: Unpublished

Opinion

PER CURIAM: *

Maricela Canoa-Corrales appeals her 18-month sentence following her guilty plea to illegal reentry following deportation. The district court applied an eight level enhancement to Canoa-Corrales’s offense level pursuant to U.S. Sentencing Guidelines . Manual § 2L1.2(b)(1)(C) because she had a prior theft conviction. Canoa-Corrales argues that this prior conviction is not an aggravated felony under § 2L1.2(b)(1)(C) because her sentence was suspended except for 108 days of time served.

The definition of “aggravated felony” adopted by the Guidelines from 8 U.S.C. § 1101(a)(43), as interpreted in United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir.1999), applies, and the calculation considers the period of incarceration without regard to any suspension of the sentence, in whole or in part. See Banda-Zamora, 178 F.3d at 730; § 2L1.2(b)(1)(C) cmt. n. 3. The fact that Canoa-Corrales’s sentence for theft was suspended except for 108 days does not change the fact that it meets the definition of an aggravated felony in § 1101(a)(43). Thus, the district court did not err in applying the § 2L1.2(b)(1)(C) enhancement. See United States v. Armendariz, 451 F.3d 352, 357 (5th Cir.2006).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.