IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-40114

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NELSON OSIRIS BUSTILLO-DELGADO,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (01-CR-971)

December 6, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Nelson Osiris Bustillo-Delgado appeals the sentence imposed

after he pleaded guilty to illegal reentry following deportation. We

find that the district court did not err in calculating his sentence,

and therefore we affirm the district court.

I

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Bustillo-Delgado pleaded guilty to count two of an indictment

charging him with illegal reentry following deportation, a violation

of

(a). Because Bustillo-Delgado had been convicted

by an Oklahoma state court prior to deportation for possession of a

stolen vehicle, Bustillo-Delgado’s offense level was increased by

eight levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(C).1

II

Bustillo-Delgado contends that the district court erred by

concluding that his prior conviction for possession of a stolen

vehicle was an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).

We review the trial court's application of the United States

Sentencing Guidelines de novo and its factual findings for clear

error.2

The commentary to § 2L1.2 adopts the definition of the term

“aggravated felony” in

(a)(43).3 Under

§ 1101(a)(43)(G), the term “aggravated felony” is defined to include,

“a theft offense (including receipt of stolen property) or burglary

offense for which the term of imprisonment [is] at least one year .

. . .”4 Bustillo-Delgado does not dispute that his crime constitutes

1 U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C) (2001).

2 See United States v. Alarcon,

(5th Cir. 2001).

3 See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C), cmt. n.2. 4

(a)(43)(G) (2000).

2 a theft, and therefore the only issue is whether his term of

imprisonment was “at least one year.”

Bustillo-Delgado contends that § 1101(a)(43)(G) should be

interpreted in light of Sentencing Guideline Manual Note 1(A)(iv),

which provides, for purposes of § 2L1.2(b)(1), “If all or any part of

a sentence of imprisonment was probated, suspended, deferred, or

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

probated, suspended, deferred, or stayed.”5 Because all but the first

90 days of his 2-year sentence of confinement for the state

conviction was suspended, Bustillo-Delgado contends his “term of

imprisonment” was not “at least one year” and the possession-of-a-

stolen-vehicle conviction was not an “aggravated felony” within the

meaning of § 1101(a)(43)(G).

Note 1(A)(iv) was added by amendment 632 to the guidelines,

effective November 1, 2001.6 Bustillo-Delgado argues that the

Sentencing Commission, in adopting amendment 632, rejected this

court’s holding in United States v. Banda-Zamora.7 Bustillo-Delgado

also argues that the adoption of Note 1(A)(iv) created an ambiguity

which should be resolved in his favor under the Rule of Lenity.

5 U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C), cmt. n.1(A)(iv) (2001). 6 See U.S. Sentencing Guidelines Manual , Supp. to App. C, amend. 632 (2001). 7

(5th Cir. 1999).

3 In Banda-Zamora, this court construed the meaning of the

(a)(43)(F).8 Like § 1101(a)(43)(G), which is at issue

here, § 1101(a)(43)(F) provides that certain crimes of violence “for

which the term of imprisonment [is] at least one year” are aggravated

felonies.9 The phrase “term of imprisonment” is defined by §

1101(a)(48)(B) which provides 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 court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”10

The court in Banda-Zamora reasoned, “Because § 1101 offers a series

of definitions applicable to the entire chapter, the definition in §

1101(a)(48)(B) applies recursively to the definition in §

1101(a)(43)(F).”11 Under the reasoning of Banda-Zamora, §

1101(a)(48)(B) also applies to § 1101(a)(43)(G). Therefore, the fact

that Bustillo-Delgado’s sentence was suspended does not change the

fact that his crime fits the definition of aggravated felony in §

1101(a)(43).

We do not find any support for the argument that the amendment

to the sentencing guideline overruled Banda-Zamora. Note 1(A)(iv)

defines the term “sentence imposed” as used in § 2L1.2(b) of the

8 Id. at 730. 9

(a)(43)(F) (2000). 10

(a)(48)(B) (2000)(emphasis added). 11 Banda-Zamora,

.

4 sentencing guidelines. Only § 2L1.2(b)(1)(A) & (B) uses the term

“sentence imposed,” and it is used in distinguishing between certain

felony drug trafficking offenses.12 The subsection of the guidelines

at issue here, § 2L1.2(b)(1)(C), does not use the term “sentence

imposed.” Therefore there is no reason to apply Note 1(A)(iv) to §

2L1.2(b)(1)(C). Instead, the definition of aggravated felon adopted

by the sentencing guidelines must be applied. That definition is the

one given in

(a), as interpreted by this court in

Banda-Zamora, and it calculates the period of incarceration or

confinement without regard to any suspension of the sentence in whole

or in part.13

III

Bustillo-Delgado contends that the sentence-enhancing provisions

of

(b)(1) and (b)(2) are unconstitutional in light of

Apprendi.14 Although he concedes that he did not raise this issue

below, he asserts that if the unconstitutional portion of the statute

were severed, his conviction should be reduced to a lesser-included-

offense found under § 1326(a). Bustillo-Delgado acknowledges that

his arguments are foreclosed by Almendarez-Torres v. United States,15

but he seeks to preserve the issue for Supreme Court review.

12 See U.S. Sentencing Guidelines Manual § 2L2.1(b)(1)(A) & (B). 13 See also United States v. Landeros-Arreola,

(5th Cir. 2001); United States v. Yanez-Huerta,

(5th Cir. 2000).

14 Apprendi v. New Jersey,

(2000). 15

(1998).

5 In Almendarez-Torres, the Supreme Court held that the fact of a

prior aggravated felony was a sentencing factor rather than an

element of the offense.16 Apprendi did not overrule Almendarez-

Torres.17 This court must follow the precedent set in Almendarez-

Torres “unless and until the Supreme Court itself determines to

overrule it.”18

For the reasons stated above, we AFFIRM the district court's

sentencing of the appellant.

16

.

17 See Apprendi,

; United States v. Dabiet,

(5th Cir. 2000) cert. denied,

(2001). 18 Dabiet,

(internal quotation and citation omitted).

6