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.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-773-ALL-H
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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this opinion should not be published and is not precedent except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.