* United States District Judge, Eastern Distict of Texas, sitting by designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No.96-50546

UNITED STATES OF AMERICA,

Plaintiff-Appe l lee,

versus

JOSE LUIS HERRERA-SOLORZANO,

Defendant-Appellant.

(consolidated with)

_________________________________

96-50548

_________________________________

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus

RIGOBERTO ALTAMIRANO-LOPEZ,

also known as Ernesto Ochoa-Lopez,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Texas

May 20, 1997

Before POLITZ, Chief Judge, DEMOSS, Circuit Judge, and JUSTICE, * District2 8 U.S.C. § 1326.

3 U.S.S.G. § 2L1.2.

2 Judge.

POLITZ, Chief Judge:

Jose Luis Herrera-Solorzano and Rigoberto Altamirano-Lopez appeal their

sentences following convictions for illegal reentry into the United States. 2 Concluding

that the district court erred in sentencing Altamirano and in the imposition of special

assessments, we affirm in part and vacate and remand in part.

BACKGROUND

In separate prosecutions Herrera and Altamirano pleaded guilty to the charge of

illegal re e ntry into the United States. Each had been deported after burglary

convictions in Texas state court. The district court increased both of their offense

levels by 16 on a finding that their prior state court convictions qualified as aggravated

felonies. 3 Herrera was sentenced to 51 months in prison and three years of supervised

release, and the court imposed a $100 special assessm ent. Altamirano was sentenced

to 70 months in prison and three years of supervised release, and the court imposed a

$100 special assessm ent. Both timely appealed. We consolidated the appeals for

purposes of appellate disposition.

ANALYSIS

1. Sentence Adjustment

Section 2L1.2 of the sentencing guidelines provides for an increase of 16 levels

for an illegal reentry conviction if the alien was convicted of an aggravated felony prior4 46 F.3d 8 (5th Cir.), cert. denied , 115 S. Ct. 2596 (1995).

5 U.S.S.G. § 2L1.2 commentary n. 7 (citing 8 U.S.C. § 1101(a)(43)). Section

1101(a)(43) has since been amended to define an aggravated felony as, inter alia

, a crime of violence for which the term of imprisonment is at least one year.

3 to deportation. Herrera and Altamirano contend that because their state court felonies

were committed before the effective date of amendments expanding the definition of

aggr avated felony, the district court erred in applying that definition to them. That

argument is foreclosed by our decision in United States v. Garcia-Rico 4 in which we

held that the date of illegal reentry -- not the date of the underlying offense -- is the

relevant date for determining the definition of aggravated felony applicable for purposes

of sentence enhancement. Herrera and Altamirano illegally reentered the United States

after the effective date of the amendments and, therefore, the district court did not err

in employing the broader definition of aggravated felony.

Altamirano alternatively contends that his prior state court conviction does not

qualify as an aggravated felony because he was not sentenced to a term of

imprisonment. An aggravated felony includes a crime of violence for which the term

of imprisonment imposed

-- regardless of any suspension of imprisonment

-- is at least

five years. 5 The Texas state court judgment states that Altamirano was to be:

punished by confinemen t . . . for TEN (10) YRS A/P [Adult Probation]

. . . . The imposition of the above sentence (and fine) is suspended and the

Defendant is placed on adult probation.

We have found an almost identical Texas state court judgment to satisfy the

aggravated felony requir ement that the defendant be sentenced to a term of6 United States v. Vasquez-Balandran , 76 F.3d 648 (5th Cir. 1996).

7 Id. at 650 ( “Texas did (and still does) have a provision that allowed a defendant

to be placed on probation (now ‘community supervision’) without first assessing a term of imprisonment.” ) (citing Tex.Code Crim.P. art. 42.12 § 5(a)).

8 United States v. Alfaro , 919 F.2d 962, 965 (5th Cir. 1990).

4 im prisonment of at least five years. 6 Unlike the judgment in V asquez-Balandran,

however, the judgment in the case at bar contains a reference to adult probation next

to the term of confinement, which suggests that the state court may have been directly

sentencing Altamirano to ten y ears of adult probation. That distinction carries

significance b e cause if Altamirano was placed on probation without first being

sentenced to prison, his prior conviction does not constitute an aggravated felony. 7

The district court, however, found that the state court conviction qualifies as an

aggravated felony. The burden is on the party seeking to adjust the sentence level to

prove “by a preponderance of the relevant and sufficiently reliable evidence the facts

necessary to support the adjustment.” 8 The sole evidence before the district court was

the state court j udgment. That judgment standing alone is not sufficient to meet the

government’s evidentiary burden. The state court judgment is inconsistent on its face.

Read literally it purports to sentence Altamirano to confinement by placing him on adult

probation for ten years. From the language of the sentence alone it is not possible to

discern with the required certainty whether the state court intended to assess a term of

imprisonment

and suspend imposition thereof, or to place Altamirano directly on

prob ation. The district court erred in failing to put the government to its burden of

proving, by a preponderance of the evidence, that Altamirano indeed was sentenced to9 Pub. L. No. 104-132, 110 Stat. 1214 (1996).

10 18 U.S.C. § 3013(a)(2)(A).

5 a prison term of at least five years. Accordingly, we affirm Herrera’s sentence but

vacate the sentence imposed on Altamir ano and remand for resentencing consistent

herewith.

2. Special Assessments

When Herrera and Altamirano illegally reentered the coun try there was a $50

special assessment imposed by statute upon any person convicted of a felony. The

Antiterrorism and Effective Death Penalty Act, 9 which was passed after both Herrera

and Altamirano made their illegal reentries, increased the special assessm ent for a

felony to $100. 10 The government concedes that the district court incorrectly imposed

a $100 special assessm ent for offenses committed prior to the effective date of the

AEDPA. We therefore vacate the imposition of the $100 special assessments and

remand so that the district court may impose $50 special assessm ents on Herrera and

Altamirano.

AFFIRMED in part, VACATED AND REMANDED in part.