IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-51178 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERTO CHAVIRRA-ESPARZA, true name Gilberto Chavarria-Esparza,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1430-ALL-H -------------------- August 24, 2000

Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.

PER CURIAM:*

Gilberto Chavirra-Esparza appeals his guilty-plea conviction

for illegal reentry into the United States, in violation of

. Chavirra-Esparza argues that the district court

erred in denying his motion for a downward departure under

U.S.S.G. § 2L1.2, comment. (n.5).

Under § 2L1.2(b)(1)(A), the base offense level for a

defendant who was previously deported after a conviction for an

aggravated felony is increased by 16. Application note 5

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-51178 -2-

provides that a downward departure may be warranted based on the

seriousness of the aggravated felony if the defendant has been

convicted of only one prior felony offense, this offense was not

a crime of violence or a firearms offense, and “the term of

imprisonment imposed for such offense did not exceed one year.”

Chavirra-Esparza contends that he qualified for a downward

departure under this provision because his prior seven-year

sentence for delivery of marihuana was suspended. He concedes

that this argument is foreclosed by our caselaw, but raises his

contention to preserve it for review by the Supreme Court.

In United States v. Yanez-Huerta,

(5th Cir.

2000), this court held that “the term of imprisonment imposed” in

§ 2L1.2, comment. (n.5), includes the imprisonment imposed

“regardless of any suspension of the imposition or execution of

that imprisonment.” Id. at 749. Therefore, Chavirra-Esparza’s

argument is without merit, and the judgment of the district court

is AFFIRMED.

Chavirra-Esparza’s motion for leave to file a supplemental

brief is DENIED.

AFFIRMED; MOTION DENIED.