*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 3 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. CARLOS MORA-PERALTA, Defendant-Appellant. No. 98-4165 (D. Utah) (D.Ct. No. 98-CR-188)

____________________________ ORDER AND JUDGMENT *
Before BRORBY , EBEL , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.
Appellant Carlos Mora-Peralta appeals the two- to three-year term of-2-

supervised release imposed by the district court atsentencing. We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.
The government indicted Mr. Mora-Peralta for illega l reentry after deportation in violation of 8 U.S.C § 1326. At the same time, the government filed a notice of sentencing enhancement under 8 U. S.C. § 1326(b)(2), requesting the district court enhance Mr. Mora-Peralta’s sente nce based on his prior conviction for an aggravated felony, thereby increa sing his maximum term of imprisonment to twenty years. Following Mr. Mora-P eralta’s guilty plea, the district court applied the enhancement under 8 U.S. C. § 1326(b)(2) based on his prior conviction, and sentenced him to 46 months in prison and a two- to threeyear term of supervised release in conformance with the twenty-year maximum term of imprisonment.
On appeal, Mr. Mora-Peralta claims the district cou rt improperly calculated his term of supervised release. While Mr. Mora-Per alta agrees the maximum term of imprisonment must be used to calculate the term of his supervised release, he suggests the maximum term of imprisonment must be p remised solely on the base offense for which he was convicted, without any enh ancement for prior convictions. Because the unenhanced, maximum sente nce for reentry after-3-

deportation is only two years, he asserts his offen se is a Class E felony subjecting him to only a one-year term of supervised release, rather than a Class C felony subjecting him to a three-year term of supervised r elease.
Generally, we review the district court’s factual f indings for clear error and its interpretation of the Sentencing Guidelines de novo. See United States v. Flores , 149 F.3d 1272, 1279 (10th Cir. 1998), cert. denied, 119 S. Ct. 849 (1999). However, because Mr. Mora-Peralta did not object to the term of supervised release prior to or at sentencing, we review the di strict court’s challenged interpretation of the applicable statutes for plain error, see United States v. Farnsworth , 92 F.3d 1001, 1007 (10th Cir.), cert. denied, 519 U.S. 1034 (1996); see also Fed. R. Crim. P. 52(b).
By statute, the term of any supervised release is b ased on the maximum term of imprisonment authorized for the offense com mitted. See 18 U.S.C. §§ 3559(a) & 3583(b); U.S.S.G. § 5D1.2(a). The Uni ted States Supreme Court has interpreted “maximum term authorized” to “inclu de all applicable statutory sentencing enhancements.” United States v. LaBonte , 520 U.S. 751, 753 (1997). In applying this definition to sentencing determinations, the Supreme Court has concluded that “[w]here Congress has enacted a base penalty for first-time-4-

offenders or nonqualifying repeat offenders, and an enhanced penalty for qualifying repeat offenders, the ‘maximum term auth orized’ for the qualifying repeat offenders is the enhanced, not the base term .” Id. at 759.
Under the sentencing statutes at issue in this case , the maximum term of imprisonment authorized for illegal reentry of a de ported alien is two years, unless the deportation was “subsequent to a conviction fo r commission of an aggravated felony,” in which case, the maximum term of imprisonment authorized is “not more than 20 years.” 8 U.S.C. §§ 1326(a)(2 ) & (b)(2). Because Mr. Mora-Peralta’s removal from the country followed hi s conviction for an aggravated felony, it is clear his maximum term of imprisonment under the applicable statutory sentencing enhancement, 8 U.S. C. § 1326(b)(2), is twenty years. An offense with a maximum term of imprisonm ent of twenty years is classified as a Class C felony under 18 U.S.C. § 35 59(a)(3), and the length of supervised release for a Class C felony is “not mor e than three years,” 18 U.S.C. § 3583(b)(2); see also U.S.S.G. § 5D1.2(a)(2). Under these circumstances , the district court did not err in sentencing Mr. Mora-P eralta to a two- to three-year term of supervised release.
For the foregoing reasons, the sentence of the dist rict court is AFFIRMED
.-5- Entered by the Court: WADE BRORBY United States Circuit Judge