UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50363

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

V.

TOMAS YANEZ-HUERTA,

Defendant - Appellant.

Appeal from the United States District Court

For the Western District of Texas -- Del Rio Division

March 23, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges:

PER CURIAM:

Def endant pleaded guilty to illegal reentry as a deported

alien in violation of 8 U.S.C. § 1326. The district court denied

defendant’s motion for a downward departure, because his five-year

sus pended term of imprisonment for a prior aggravated felony

rendered him inel igible for a downward departure in sentencing

based on the seriousness of the underlying felony. We AFFIRM.

I.

In December 1996, D efendant Tomas Yanez-Huerta, a Mexican

citizen, was stopped for riding a bicycle without a safety helmet

in Dallas, Texas. Visibly intoxicated at the time, he was arrested

and searched. The search revealed 1.8 grams of cocaine in his1 Y anez-Huerta also had three prior misdemeanor convictions, all

for illegally entering the United States.

2 possession. Yanez-Huerta was prosecuted for possession of cocaine

in Texas state court and received a sentence of five years

confinement, suspended and probated for five years. He was then

dep orted to Mexico in June 1998. Less than five months later,

Yanez-Hue rta was back on the road to the Big D. A Border Patrol

agent stopped the truck in which he was a passenger after

witnessing two individuals jump out of the brush and into the truck

near Del Rio, Texas.

Yanez-Huerta pleaded guilty to a charge of unlawful reentry as

a deported alien. See 8 U.S.C. § 1326 (1994). He was subject to

a 16-level increase to his sentence under United States Sentencing

Guide line (“U.S.S.G.”) §2L1.2, because of his earlier conviction

for cocaine possession. In the presentence report, the probation

officer recommended that Yanez-Huerta’s offense level be tripled,

from level 8 to level 24, to reflect the earlier conviction for an

“aggravated felony.” S ee §2L1.2(b)(1)(A). 1 After a three-level

reduction for acceptance of responsibility, pursuant to §3E1.1,

Yanez-Huerta’s total offense level was 21 and his criminal history

category was IV, resulting in a guideline range of 57 to 71 months.

Yanez-Huerta did not challenge the guideline calculation, but

did move for a downward departure pursuant to U.S.S.G. §2L1.2,

Application Note 5. Note 5 provides for a two-level downward

departure when a criminal defendant has only a single non-violent

underlying felony that resulted in a “term of imprisonment imposed”3

of less than one year. Appellant’s eligibility for this particular

departure hin ged entirely on whether his five-year suspended

sentence qualifies as a “term of imprisonment imposed” of less than

one year. Essentially, appellant argues that “term of imprisonment

imposed” should be read as “term of imprisonment served.” The

district court rejected this argument, denied Yanez-Huerta’s motion

for departure, and sentenced him to 57 months imprisonment. YanezHuerta appeals, challenging only the denial of his motion for a

downward departure.

II.

This court reviews a district court’s application and

interpretation of the Sentencing Guidelines d e novo and its

findings of fact for clear error. S ee United States v. Sharpe

, 193

F.3d 852, 872 (5th Cir. 1999). However, this court has

jurisdiction to review a defendant's challenge to a sentence only

if it was (1) imposed in violation of law, (2) imposed as a result

of an incorrect application of the Guidelines, (3) resulted from an

upward departure, (4) or was unreasonably imposed for an offense

not covered by the sentencing guidelines. S ee United States v.

Ogbonna , 184 F.3d 447, 451 (5th Cir. 1999). "The imposition of a

lawful sentence coupled with the decision not to depart from the

guidelines provides no ground for relief." U nited States v. Miro

,

29 F.3d 194, 198-99 (5th Ci r. 1994). We have jurisdiction to

review the district court's decision not to depart do wnward from

the guideline range only if the court based its decision upon an

erroneous belief that it lacked the authority to depart. S ee4

Ogbonna

, 184 F.3d at 451 n.5. A refusal to grant a downward

departure is a violation of law only if the court mistakenly

a ssumes that it lacks authority to depart. S ee United States v.

Burleson , 22 F.3d 93, 95 (5th Cir. 1994). Finally, there must be

“something in the record [to] indicate that the district court held

such an erroneous belief." United States v. Landerman , 167 F. 3d

895, 899 (5th Cir. 1999).

In this case, defense counsel asked the district court to

clarify its holding concerning the denial of defendant’s motion on

the record. The district court explained, “were this an original

proposition put to the court, the court might very well adopt the

suggestion made by defendant’s counsel, but the Fifth Circuit has

made it abundantly plain that they are not going to uphold any such

action on the part of a federal district judge.” Defense counsel

then inquired, “.

. . I gather from what the cour t has indicated

that the Court feels that it doesn’t have authority based on prior

Fifth Circuit decisions.” To which the district court replied, “I

sure do. That’s exactly what I feel.” Accordingly, this court has

jurisdiction to review whether the refusal was proper.

III.

Since Yanez-Huerta reen tered the United States after being

depor ted for committing an aggravated felony, his base offense

level was enhanced by 16 levels from 8 to 24. S ee U.S.S.G.

§§2L1.2(a). However, the present version of Application Note 5 of

§2L1.2, effective November 1, 1997, provides that if

(A) the defendant has previously been convicted of only5

one felony offense ; (B) such offense was not a crime of

violence or firearms offense; and (C) the term of

imprisonment imposed for such offense did not exceed one

year, a downward departure may be warranted based on the

seriousness of the aggravated felony.

Yanez-Huerta does not dispute that he was deported after being

convicted for an aggravated felony; the Government does not dispute

that Yanez-Huerta has only a single underlying felony conviction,

and this conviction for possession of cocaine was a non-violent

offense. Hence, it is the third prong of Application Note 5 on

which the parties differ. Specifically, does a suspended sentence

for an a ggravated felony constitutes a "term of imprisonment

imposed?"

The current §2L1.2 does not define "term of imprisonment

imposed," nor does it explicitly incorporate a definition from the

Title VIII of the United States Code. The prior version of §2L1.2

did not contain the current Application Note 5, but did contain the

phrase “term of imprisonment” in a nother application note that

defined “aggravated felony.” Prior to its amendment in 1996,

“aggravated felony” was defined, in part, an offense “for which the

term imprisonment imposed (regardless of any su spension of such

imprisonment)

. . .” 8 U.S.C. § 1101(a)(43)(F), (G), and (N)

(1994). The “regardless of suspension” parenthetical was

eliminated by the 1996 amendments. Instead, Congress augmented the

definitional provisions governing “convictions” to clarify that:

Any reference to a term of imprisonment or a sentence

with respect to an offense is deemed to include the

period of incarceration or confinement ordered by a court2 Also, Amendment 562 explicitly states that the 1997

amendment to §2L1.2 “conforms the definition of 'aggravated felony’

i n the guidelines with the amended definition in the Immigrat ion

and Nationality Act.” U.S.S.G. Appendix C, amendment 562 at 413.

6 of law regardless of any suspension of the imposition or

execution of that imprisonment or sentence in whole or in

part.

8 U.S.C. § 1101(a)(48)(B)(1999)(emphasis added).

From this reorganization, Appellant gleans that the amendments

have a substantive purpose

-- specifically, congressional intent to

exclude suspended sentences. Essentially, Appellant argues that if

the Sentencing Commission wanted to include suspended sentences, it

would have used the same language that it earlier employed.

We find this argume nt unpersuasive. First, there is no

evidence that this change was intended to serve a substantive

purpose, let alone the one proposed by Appellant. The amendment

served the obvious purpose of simplification by reducing the number

of identical parentheticals from four to one. There is nothing in

the statutory amendments nor the guidelines to suggest that such a

substantive amendment was intended.

Second, Appellant is unable to explain why the clear statement

in general provisions section § 1101(a)(48)(b) should not apply.

Guideline §2L1.2 expressly incorporates the definition of

“aggravated felony” contained in § 1101(a)(43). Logic dictates

that if Application Note 5 refers to a “term of imprisonment”

imposed with respect to an offense defined by § 1101(a)(43), §

1101(a)(4 8)(B) applies. 2 We essentially adopted this position in7

United States v. Banda-Zamora

, 178 F.3d 728, 730 ( 5th Cir. 1999),

in which we concluded, "§ 1101 offers a series of definitions

applicable to the entire chapter [such that] the definition in §

1101(a)(48)(B) applies recursively" to the other definitions in §

1101(a)(43).

Similarly, the transfer of the “suspended sentence”

parenthetical from the definition s of, i nter alia

, “crime of

violence,” “theft offense” to the definition of the b roader term

“conviction”, does not support a conclusion that Congress no longer

intended a suspended sentence to be considered a sentence of a

"term of imprisonment imposed” As we have earlier stated when

discussing the predecesso r version of §2L1.2, "[c]learly, the

Sentencing Commission envisioned [§ 2L1.2's] applicability to

extend to those defendants who actually are ordered to serve their

sentences and also those defendants who avoid a determined period

of incarceration by a process which suspends serving the term of

imprisonment.” U nited state s v. Ramos-Garcia , 95 F.3d 369, 371

(5 th Cir. 1996) (quoting U nited States v. Vasquez-Balandran

, 76

F.3d 648, 651 (5th Cir. 1996).

In conclusion, we hold that because Application Note 5 refers

to a term of imprisonment imposed with respect to an offense

defined by § 1101(a)(43), § 1101(a)(48)(B) applies. Consequently,

§2L1.2's "term of imprisonment imposed" includes sentences imposed

regardless of any suspension of the imposition or execution of that

imprisonment.

On this point we are in accord with the Tenth Circuit, the3 Appellant also sought a downward departure for the

relatively minor nature of his underlying felony purs uant to the

district court’s general authority to depart under §5K2.0. In this

particular instance, a §5K2.0 downward departure would essentially

duplicate the §2L1.2 provisions e s tablished by the Sentencing

Commission to afford a criminal defendant a possible downward

departure to lessen the effect that a relatively minor underlying

8 lone circuit court to have addressed the effect of these particular

amendments. See United States v. Chavez-Valenzuela , 170 F.3d 1038

(10th Cir. 1999). Additionally, the circuit courts which addressed

"termof imprisonment" under the pre-amendment era § 2L1.2

interpreted it to mean the sentence imposed, re gardless of

suspensions, rather than the time actually served. S ee United

States v. Galicia-Delgado

, 130 F.3d 518, 520 (2d Cir. 1997); United

States v. Cordova-Beraud

, 90 F.3d 215, 218-19 (7th Cir. 1996). The

changes made by the 1996 amendments do not suggest that Congress

meant to overturn this interpretation of the term.

IV.

Yanez- Huerta is not entitled to a downward departure under

§ 2L1.2 if a term of imprisonment of more than one year was imposed

for his prior aggravated felony. Guideline § 2 L1.2 defines

aggravated felony in relation to § 1101(a)(43), and §

1101(a)(48)(B) applies recursively, "term of imprisonment imposed"

includes suspended sentences. Therefore, Yanez-Huerta's five-year

susp ended term of imprisonment exceeded the one-year maximum

specified in Application Note 5, making himineligible for a

departure based on the relatively minor natu re of his underlying

felony conviction. 3 Accordingly, the district court was correct tofelon y conviction can have on his offense level. C f. Koon v.

United States

, 518 U.S. 81, 91-94 (1996). Because a §5K2.0

departure would have been based on factors a lready taken into

account by §2L1.2, the district court properly addressed the

appropriateness of a downward departure solely under the criteria

set forth in the latter provision.

9 deny the motion for a downward departure under that provision. The

judgment of the district court is therefore AFFIRMED.