* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 22, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-41685

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MIGUEL RODRIGUEZ-MARTINEZ, also known as

Moises Bautista-Tec,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

(L-02-CR-1043-ALL)

--------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Jose Miguel Rodriguez-Martinez

("Rodriguez"), whose true name is Moises Bautista-Tec, appeals from

the sentence imposed following his guilty plea to illegal re-entry

following deportation, in violation of 8 U.S.C. § 1326(a). The

d istrict court applied an eight-level enhancement to Rodriguez' s

offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(C) because he has

a prior theft conviction for which he was sentenced to five years'2

imprisonment, suspended for two years' probation, 74 days in jail,

and a $1,000 fine.

Rodriguez argues that this prior conviction is not an

aggravated felony under § 2L1.2(b)(1) ( C) because the sentence

imposed was not at least one year in prison. Rodriguez relies on

No te 1(A)(iv), which provides that "[i]f all or any part of a

sentence of imprisonment w as probated, suspended, deferred, or

stayed, 'sentence imposed' refers only to the portion that was not

probated, suspended, deferred, or stayed." Rodriguez contends

that, because all of his sentence was probated or suspended except

for 74 days, his offense of conviction is not an aggravated felony.

Rodriguez concedes that his conviction is an aggrava ted felony

under United States v. Banda-Zamora

, 178 F.3d 728, 730 (5th Cir.

1999), but argues that Banda-Zamora is not controlling because it

was decided before Note 1(A)(iv) was added to the commentary. He

also contends that Note 1(A)(iv) created an ambiguity, as of result

of which the question must be resolved in his favor under the "rule

of lenity."

We are not persuaded. Note 1(A)(iv) defines the term

"sentence imposed" as used in § 2L1.2(b), but that term appears

only in § 2L1.2(b)(1)(A) & (B) and is used in distinguishing

between various f elony drug trafficking offenses. The guideline

section at issue here is § 2L1.2(b)(1)(C), which does not use

the term "sentence imposed." Note 1(A)(iv) is not applicable in

this case. Instead, the definition of "aggravated felony" adopted3

by the guidelines from 8 U.S.C. § 1101(a), as interpreted in BandaZamora

, applies, and th e calculation considers the period of

incarceration without regard to any suspension of the sentence, in

whole or in part. S ee Banda-Zamora

, 178 F.3d at 730; §

2L1.1(b)(1)(C), comment. (n.2). The fact that Rodriguez's sentence

for theft was suspended except for 74 days does not change the fact

that it meets the definition of an aggravated felony in §

1101(a)(43).

Rodriguez also argues, for the first time on appeal, that

8 U.S.C. § 1326(b) is unconstitutional because it treats a prior

conviction for a felony or aggravated felony as a sentencing factor

and not as an element of the offense. He acknowledges that his

argument is foreclosed by Almendarez-Torres v. United States , 523

U.S. 224, 235 (1998), but wishes to preserve the issue for Supreme

Court review in light of App rendi v. New Jersey , 530 U.S. 466

(2 000). A pprendi did not overrule Almendarez-Torres

. S ee

Apprendi

, 530 U.S. at 489-90; see also United States v. Dabeit

, 231

F.3d 979, 984 (5th Cir. 2000), and we must follow the precedent set

in A lmendarez-Torres "unless and until the Supreme Court itself

determines to overrule it." D abeit

, 231 F.3d at 984 (internal

quotation and citation omitted).

AFFIRMED.