United States v. Rodriguez-Salas

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 15, 2000
• Docket: 99-50866
• Status: Unpublished

Opinion

No. 99-50866 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50866 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN RODRIGUEZ-SALAS, also known as Juan Carlos Rodriguez-Gonzalez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-773-ALL-H --------------------

February 15, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Juan Rodriguez-Salas challenges his sentence from his guilty

plea conviction for illegal reentry after deportation. See 8

U.S.C. § 1326. He argues that the district court erroneously

interpreted the phrase, “term of imprisonment imposed,” from

U.S.S.G. § 2L1.2, comment. (n.5) in denying Rodriguez’s request

for a downward departure. He contends that the phrase does not

include the imposition of a suspended sentence such as the

sentence from his prior conviction.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-50866 -2-

Rodriguez’s reliance on application notes, amendments to

§ 2L1.2, and similar language in Chapter Four of the guidelines

is unpersuasive. See United States v. McKenzie, 193 F.3d 740,

742 (3d Cir. 1999). Although application note five neither

defines “term of imprisonment imposed” nor explicitly

incorporates the definition set out in 8 U.S.C. § 1101(a)(48)(B),

we agree with the Government that the meaning of the application

note’s phrase is determined by § 1101(a)(48)(B). Section 2L1.2

defines aggravated felony in relation to § 1101(a)(43). Since

application note five refers to a term of imprisonment imposed

with respect to an aggravated felony as defined by § 1101(a)(43),

see § 2L1.2, comment. (n.1), § 1101(a)(48)(B) applies. Thus,

“term of imprisonment imposed” in application note five includes

suspended sentences. See United States v. Chavez-Valenzuela, 170

F.3d 1038, 1039-40 (10th Cir. 1999).

The district court did not err in determining that

Rodriguez’s prior conviction resulting in a two-year suspended

term of imprisonment made him ineligible for a downward departure

pursuant to § 2L1.2, comment. (n.5).

AFFIRMED.