IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20283 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOEL FERNANDEZ-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-594-1 -------------------- October 17, 2000

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Joel Fernandez-Martinez (Fernandez) appeals his sentence

following a guilty-plea conviction for illegally reentering the

United States in violation of

(A). We affirm.

Fernandez concedes that the Supreme Court’s decision in

Almendarez-Torres v. United States,

(1998),

forecloses his argument that his prior conviction for an

aggravated felony is an element of the offense that must be

alleged in the indictment, but he raises the issue to preserve it

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20283 -2-

for review in the Supreme Court. This issue provides no basis

for relief.

Fernandez also contends that the sentence imposed by the

state court was one of probation rather than imprisonment and,

therefore, does not constitute an aggravated felony for purposes

of the 16-level increase under U.S.S.G. § 2L1.2(b). Whether the

Sentencing Guidelines apply to a prior conviction is an issue of

law which we review de novo. See United States v. Vasquez-

Balandran,

(5th Cir. 1996). The Government has

the burden of proving, by a preponderance of the evidence, the

facts supporting an offense-level increase. See United States v.

Herrera-Solorzano,

(5th Cir. 1997). A conviction

resulting in a suspended sentence satisfies the definition of an

aggravated-felony conviction whereas a conviction resulting in a

sentence of probation only does not. See

The Texas judgment at issue provides that Fernandez was

sentenced to “4 yrs TDC probated and $750.00 fine.” The judgment

also contains the stamped notation “Imposition of Sentence

Suspended and Defendant placed on Probation for a period of 4

years, pending abiding by the Conditions of Probation.”

The judgment at issue is distinguishable from that in

Herrera-Solorzano because the phrase “4 yrs TDC probated,”

indicates a sentence of imprisonment, unlike the phrase “TEN (10)

years A/P [Adult Probation]” in the Herrera-Solorzano judgment,

which indicated a sentence of probation. This reading of

Fernandez’s judgment is further supported by the provision

therein that “the Court assessed the punishment at confinement in No. 00-20283 -3-

the Texas Department of Corrections for the period indicated

above.” (emphasis added).

For the foregoing reasons, we affirm the sentence imposed by

the district court.

AFFIRMED.