UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 02-41042 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEANDRO GUTIERREZ-ESTRADA,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (B-02-CR-45-1) _________________________________________________________________ March 12, 2003

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Leandro Gutierrez-Estrada, convicted for violating

(a), appeals his sentence. Prior to deportation, Gutierrez was

convicted for possession of marijuana for resale, for which he was

sentenced to two years of custody, suspended for two years of

probation.

Gutierrez contends the district court plainly erred by

increasing his offense level by 12, pursuant to U.S.S.G. §

2L1.2(b)(1)(B). See U.S.S.G., cmt. n.1 (A)(iv) (for purposes of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. determining whether, inter alia, sentence imposed for drug

trafficking was 13 months or less, “sentence imposed” refers only

to portion of sentence not probated or suspended). Given the lack

of controlling authority in this circuit on this issue, and as

discussed below, any error on the part of the district court was

not “clear or obvious” and, therefore, does not constitute plain

error. See e.g., United States v. Calverley,

(5th Cir. 1994) (en banc).

Subsection (b)(1)(B) provides for a 12-level enhancement when

the defendant was previously convicted of a “felony drug

trafficking offense for which the sentence imposed was 13 months or

less”. (Emphasis added.) Arguably, pursuant to § 2L1.2’s above-

referenced commentary, Gutierrez’ “sentence imposed” was zero

months, a period “less” than 13 months. In other words, and

pursuant to the commentary, even though the entire sentence was

probated, the “sentence imposed” is arguably zero months, because

that was the portion of the sentence not probated. Again, because

there is no controlling authority in this circuit, any error did

not meet the required level of being “clear” or “obvious”.

Gutierrez contends that the sentence-enhancing provisions of

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

of Apprendi v. New Jersey,

(2000). Gutierrez

acknowledges this issue is foreclosed by Almendarez-Torres v.

2 United States,

(1998), but he seeks to preserve it for

Supreme Court review.

AFFIRMED

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