*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-41370

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CANDIDO TREVINO-BANDA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(B-98-CR-405-1)

_________________________________________________________________

July 8, 1999

Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

PER CURIAM:*

Candido Trevino-Banda pled guilty to attempting to illegally

enter the country after having been previously deported, a

violation of 8 U.S.C. § 1326, and was sentenced to sixty-three

months’ imprisonment. Trevino-Banda appeals, arguing that the

district court erroneously enhanced his sentence based on his

prior conviction for indecency with a child. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND
 

1 According to the PSR, the indictment “indicates the

defendant ‘unlawfully with the intent to arouse and gratify the

sexual desire of the defendant, engaged in sexual contact by

touching with his hands the breasts of a child younger than 17

years of age and not the spouse of the defendant.’”

2

On July 4, 1998, Candido Trevino-Banda attempted to enter

the United States by claiming that he was a United States

citizen. Trevino-Banda is not a United States citizen, however,

and he had previously been deported from the United States on

four separate occasions. As a result, Trevino-Banda was arrested

and pled guilty to violating 8 U.S.C. § 1326 by attempting to

illegally enter the United States after being previously

deported.

The Presentence Investigation Report (PSR) found that

Trevino-Banda’s base offense level was eight, see U.S. SENTENCING

GUIDELINES MANUAL § 2L1.2(a) (1997), and reduced that level by three

because Trevino-Banda accepted responsibility. The probation

office also increased Trevino-Banda’s offense level by sixteen

levels based on its finding that he had a “prior aggravated

felony conviction . . . and was deported subsequent to said

conviction.” See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)

(1997). Specifically, the probation office determined that a

Texas court convicted Trevino-Banda in 1989 of “indecency with a

child”1 and sentenced him to “10 years imprisonment suspended for

10 years probation.” Finally, the PSR states that TrevinoBanda’s plea agreement included a recommendation by the

government for a two-level reduction because of his early plea of

guilty. Based on a criminal history category of VI, Trevino-
Wê'èÃD

-V The application notes to § 2L1.2 state that “‘[a]ggravated

felony,’ is defined at 8 U.S.C. § 1101(a)(43).” Under

§ 1101(a)(43),

The term “aggravated felony” means–

(A) murder, rape, or sexual abuse of a minor;

 [or]

. . .

(F) a crime of violence (as defined in section 16 of Title

18, but not including a purely political offense) for

which the term of imprisonment at least one year;

. . . .

3

Banda’s total offense level of nineteen produced a guidelines

sentencing range of sixty-three to seventy-eight months.

Trevino-Banda objected to the PSR’s sixteen-level adjustment

for conviction of an aggravated felony, arguing that his prior

conviction for indecency with a minor is not an “aggravated

felony” under § 2L1.2(b)(1)(A).2. The government argued to the

district court that Trevino-Banda’s conviction may be enhanced

using the definition of “aggravated felony” in 8 U.S.C.

§ 1101(a)(43)(A) because his prior conviction was for indecency

with a minor. The district court did not address this argument,

however, and neither party mentions it on appeal.3 Trevino-Banda

contended that the definition of “aggravated felony” in 8 U.S.C.

§ 1101(a)(43)(F) “does not indicate whether the term of

imprisonment of at least one year must have been ‘served’ or

‘imposed’ or just possible,” and that Congress “actually intended

to eliminate convictions involving suspended sentences or

straight probation sentences from the meaning of the definition

of aggravated felony” when it amended 8 U.S.C. § 1101(a)(43) by
 

4 Prior to its amendment in 1996, 8 U.S.C. § 1101(a)(43)(F)

defined the term “aggravated felony” as “a crime of violence (as

defined in section 16 of Title 18; but not including a purely

political offense) for which the term of imprisonment imposed

(regardless of any suspension of imprisonment) is at least 5

years.” 8 U.S.C. § 1101(a)(43)(F) (1995) (amended 1996).

4

enacting the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-

546.4

The probation office and the government responded to

Trevino-Banda’s objection by asserting that Trevino-Banda was

“mixing the subsections of 8 U.S.C. § 1101" because, under

§ 1101(a)(43)(A), the term “aggravated felony” includes “murder,

rape, or sexual abuse of a minor” and makes no reference to the

punishment that was imposed or could have been imposed. TrevinoBanda responded by arguing to the district court that “[t]he

definition of aggravated felony . . . does not seem to include

indecency with a child, except as it would be defined as a crime

of violence . . . requir[ing] a term of imprisonment of at least

one year,” but the court overruled his objection and sentenced

him to sixty-three months’ imprisonment. Trevino-Banda timely

appeals.

III. DISCUSSION

Trevino-Banda argues on appeal that the definition of

“aggravated felony” found in 8 U.S.C. § 1101(a)(43)(F) is vague

and ambiguous, and that any ambiguity in the statute should be

resolved in his favor. Trevino-Banda faults the statute for

failing to state “whether a suspended sentence or a sentence of
 

5 Under § 2L1.2(b)(1)(B), the offense level of a defendant

previously deported after a criminal conviction for any felony

other than an aggravated felony or for three or more misdemeanor

crimes of violence or misdemeanor controlled substance offenses

is increased by four levels. See U.S. SENTENCING GUIDELINES MANUAL

§ 2L1.2(b)(1)(B) (1997). 

5

probation is included in its definition of ‘term of

imprisonment,’” and argues that the “typographical error that

omits the verb between ‘term of imprisonment’ and ‘at least one

year’ renders section 1101(a)(43)(F) vague and ambiguous.” 

Trevino-Banda argues that Congress “did not have any difficulty”

in distinguishing sentences actually imposed elsewhere in 8

U.S.C. § 1101(a), and that the “rule of lenity” requires that

this court construe 8 U.S.C. § 1101(a)(43)(F) in his favor.

“This court’s review of a sentence imposed under the

Sentencing Guidelines is limited to ‘a determination whether the

sentence was imposed in violation of law, as a result of an

incorrect application of the Sentencing Guidelines, or was

outside of the applicable guideline range and was unreasonable.’” 

United States v. Hinojosa-Lopez, 130 F.3d 691, 693 (5th Cir.

1997) (quoting United States v. Matovsky, 935 F.2d 719, 721 (5th

Cir. 1991)). Although we will reverse the district court’s

factual findings if they are clearly erroneous, we review a claim

that the district court erred in applying the sixteen-level

increase in § 2L1.2(b)(1)(A) instead of § 2L1.2(b)(1)(B)5 de

novo. See id. (citing United States v. Reyna-Espinosa, 117 F.3d

826, 828 (5th Cir. 1997)). Finally, we note that we can affirm

Trevino-Banda’s sentence on any ground supported by the record. 
6

See United States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir.

1995); accord United States v. Varela, 138 F.3d 1242, 1244 (8th

Cir. 1998) (“It is, however, well established that we may affirm

a sentence on any grounds supported by the record.”); United

States v. Carmack, 100 F.3d 1271, 1276 (7th Cir. 1996).

We have recently rejected Trevino-Banda’s proposition that 8

U.S.C. § 1101(a)(43)(F) is impermissibly vague. See United

States v. Banda-Zamora, No. 98-40903, 1999 U.S. App. LEXIS 13239,

at *1-*5 (5th Cir. June 16, 1999). We therefore conclude that

the district court was correct in determining that Trevino-Banda

had been convicted of an aggravated felony and properly enhanced

his sentence under § 2L1.2.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Candido Trevino-Banda’s

sentence.