* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUN 21 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. BENITO ORTEGA-GARCIA, a/k/a Benito Ortega, Defendant - Appellant. No. 99-5217 (D.C. No. 99-CR-1-C) (N.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BRORBY , and BRISCOE , Circuit Judges.
Mr. Ortega-Garcia appeals from his sentence for unl awful reentry of a deported alien, 8 U.S.C. § 1326. We have jurisdict ion under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and affirm.

I. Background In 1996, Mr. Ortega-Garcia was convicted of assaultwith a dangerous weapon, a felony under Oklahoma law, Okla. Stat. ti t. 21 § 645. I R. doc. 25, ex.1 At oral argument, counsel for Mr. Ortega-Garcia w aived Mr. OrtegaGarcia’s argument in his brief that “[d]ouble count ing caused him to get a longer sentence.” Aplt. Br. at 8. Counsel also conceded that Mr. Ortega-Garcia’s due process argument that his sentence was imposed in v iolation of Apprendi v. New Jersey , 530 U.S. 466 (2000), Aplt. Br. at 18-19, was fore closed by our precedent. We therefore do not address those arguments here. - 2 - A, at 1; IV R. at 9-12, after having chased his gir lfriend around a parking lot, grabbed her shirt collar, knocked her to the ground , slapped her, and threatened to stab her with a pocket knife before witnesses intervened. II R. at 7 (presentence report). He was given a two-year suspended sentenc e, I R. doc. 25, ex. A, at 2, and was later deported. II R. at 7. Shortly there after, he returned to Oklahoma and was arrested for having violated the terms of h is suspended sentence. Id. Mr. Ortega-Garcia’s suspended sentence was revoked, id. at 9, and he was sentenced to one year of imprisonment. Id. After serving his state sentence, Mr. OrtegaGarcia was charged and convicted in federal court o f unlawful reentry of a deported alien, 8 U.S.C. § 1326. I R. doc. 28, at 1. At sentencing, the district court concluded that Mr . Ortega-Garcia’s conviction for assault with a dangerous weapon was an aggravated felony. IV R. at 16-17. The district court therefore increased M r. Ortega-Garcia’s offense level sixteen levels, and sentenced him to sixty-three mo nths of imprisonment and three years of supervised release. Id. at 30; I R. doc. 28, at 2-3. Mr. Ortega-Garcia appeals from this enhancement and raises two issues for our consideration. 1- 3 - II. Discussion
A. The Government’s Burden of Proof Mr. Ortega-Garcia first argues that the government should have been required to prove that Mr. Ortega-Garcia’s prior co nviction was an aggravated felony by clear and convincing evidence because the aggravated felony enhancement significantly increased his sentence. Mr. Ortega-Garcia fails to cite any case that stands for this proposition. NeitherApprendi v. New Jersey , 530 U.S. 466 (2000), Almendarez-Torres v. United States , 523 U.S. 224, 248 (1998), nor United States v. Watts , 519 US. 148, 156 (1997), upon which Mr. OrtegaGarcia relies, are availing. In fact, in United St ates v. Martinez-Villalva , 232 F.3d 1329 (10th Cir. 2000), decided after Apprendi , we reiterated the longstanding rule that “it is the government’s burden t o prove the facts supporting a sentence enhancement by a preponderance of the evid ence.” Martinez-Villalva , 232 F.3d at 1333 (citation omitted). This is true even if the enhancement will substantially increase the defendant’s sentence. U nited States v. Segien , 114 F.3d 1014, 1021 (10th Cir. 1997). Accordingly, Mr. Orte ga-Garcia’s argument fails.
B. Prior Conviction an Aggravated Felony Mr. Ortega-Garcia next argues that the district cou rt erred in concluding that his prior conviction was an aggravated felony. This argument also fails. At sentencing, the district court concluded that Mr. O rtega-Garcia’s prior conviction- 4 -

clearly fell within the definition of an aggravatedfelony. IV R. at 16. “We review the district court’s interpretation and appl ication of the Sentencing Guidelines de novo.” Martinez-Villalva , 232 F.3d at 1332 (citation and internal quotations omitted). If a defendant is convicted o f unlawful entry of a deported alien and was previously deported after conviction for an aggravated felony, the defendant’s base offense level is increased sixteenlevels. U.S.S.G. § 2L1.2(b)(1)(A). An aggravated felony includes “a c rime of violence . . . for which the term of imprisonment [is] at least one ye ar . . . .” 8 U.S.C. § 1101(a)(43)(F). A crime of violence is (a) an offense that has as an element the use, atte mpted use, or threatened use of physical force against the personor property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical f orce against the person or property of another may be used in the co urse of committing the offense. 18 U.S.C. § 16. We look only to the statutory defi nition of assault with a dangerous weapon to determine whether the offense i s a crime of violence. United States v. Reyes-Castro , 13 F.3d 377, 379 (10th Cir. 1993) (“[A] court mus t only look to the statutory definition, not the unde rlying circumstances of the crime, to make this determination.”) (citation omitted). Assault with a dangerous weapon occurs where a person with intent to do bodily harm and without justifiab le or excusable- 5 -

cause, commits any assault, battery, or assault andbattery upon the person of another with any sharp or dangerous weapo n, . . . , although without the intent to kill such person or to commit any felony, [and is] upon conviction . . . a felony pu nishable by imprisonment in the penitentiary not exceeding ten (10) years, or by imprisonment in a county jail not exceeding one (1) year. Okla. Stat. tit. 21 § 645 (1983). It is readily ap parent that assault with a dangerous weapon satisfies either definition of cri me of violence. It has as an element the use, attempted use, and threatened use of physical force against another person, 18 U.S.C. § 16(a), and, alternative ly, is a felony that involves a substantial risk of physical force. Id. § 16(b). Therefore, because Mr. OrtegaGarcia was previously convicted for a crime of viol ence, and because he was sentenced to a term of imprisonment at least one ye ar in length, the district court correctly concluded that Mr. Ortega-Garcia had beenconvicted of an aggravated felony. Mr. Ortega-Garcia argues he did not commit a crime of violence because his term of imprisonment was not at least one year in length. To determine whether Mr. Ortega-Garcia’s sentence was a term of imprisonment of at least one year, we look to “the period of incarceration or co nfinement ordered by a court 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) (emphasis added). Accordingly, Mr. Ortega-Garcia’s original two-year sentence is deemed to be for a term of imprisonment of at le ast one year, notwithstanding- 6 -

the fact that the sentence was suspended. Furtherm ore, Mr. Ortega-Garcia’s subsequent sentence of one-year imprisonment for vi olating the terms of his suspended sentence also constitutes a term of impri sonment of at least one year. Mr. Ortega-Garcia cites Martinez-Villalva , apparently for the proposition that the government failed to prove that Mr. Ortega -Garcia’s prior conviction was an aggravated felony by a preponderance of the evid ence. Martinez-Villalvais readily distinguishable from this case. In Martine z-Villalva , the government failed to prove by a preponderance of the evidence that the defendant received a suspended sentence rather than an original sentence of probation. 232 F.3d at 1333. The only evidence submitted by the government regarding the defendant’s theft conviction was a state court journal entry. Id. Furthermore, the journal entry did not “state that the court suspended the s entence of imprisonment . . . .” Id. By way of contrast, the judgment and sentence sub mitted by the government in this case clearly states that Mr. Ortega-Garcia was convicted of a felony and received a suspended sentence. I R. doc. 25, ex. A , at 2. Furthermore, two witnesses provided uncontroverted testimony at the sentencing hearing that Mr. Ortega-Garcia’s prior conviction was an aggravated felony. IV R. at 4-15. It was therefore “possible to discern with the required ce rtainty” that Mr. Ortega-Garcia was convicted of a felony and received a suspended sentence as opposed to an original sentence of probation. Martinez-Villalva , 232 F.3d at 1334 (citation and- 7 -

internal quotations omitted). Finally, Mr. Ortega-Garcia argues that because sent ences for unlawful reentry of a deported alien in the Southern Distric t of California are much shorter than those imposed in other federal districts, see United States v. BanuelosRodriguez , 173 F.3d 741, 742 (9th Cir.), opinion withdrawn b y , 195 F.3d 454 (9th Cir. 1999), this disparity somehow diminishes the v iolent nature of Mr. OrtegaGarcia’s conviction for assault with a dangerous we apon. He also argues that “[t]he aggravated felonystatus was particularly contrived by the US Attorn ey’s role in this case while working with the prosecutorin the Tulsa County Juvenile Court.” Aplt. Br. at 16 (emphasis in original). Apparently, a proceeding had commenced in family court to relinquish Mr. Ortega- Garcia’s parental rights to a child he fathered in 1997. I R. doc. 17, at 2. Bo th the alleged sentencing disparity and the government’s alleged participatio n in the family court proceedings are totally irrelevant to the question before us.
AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge