United States v. Gomez-Salamanca , 34 F. App'x 878 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
JOSE AMILCAR GOMEZ-SALAMANCA,
a/k/a Amilcar Jose Salamanca, a/k/a  No. 01-4806
Amilcar Gomez Salamanca, a/k/a
Amilcar Hernandez, a/k/a Amilcar
Cruz, a/k/a Jose Amilcar Gomez,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-00-564-AW)
Submitted: April 16, 2002
Decided: May 20, 2002
Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Elizabeth Pearl Raman, Assis-
tant Federal Public Defender, Greenbelt, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Odessa P. Jackson,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. GOMEZ-SALAMANCA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jose Amilcar Gomez-Salamanca pled guilty to one count of unau-
thorized reentry of a deported alien after conviction of an aggravated
felony in violation of 8 U.S.C.A. § 1326(a), (b)(2) (West 1999). He
appeals his sentence, contending that the district court erred in finding
that it lacked authority to depart downward pursuant to U.S. Sentenc-
ing Guidelines Manual § 2L1.2, cmt. n.5 (2000). A district court’s
refusal to grant a downward departure is not reviewable unless the
court based its decision on the mistaken belief that it lacked authority
to do so. United States v. Matthews, 209 F.3d 338, 352-53 (4th Cir.),
cert. denied, 531 U.S. 910 (2000). The existence of a district court’s
authority to depart under USSG § 2L1.2 is a legal determination that
is reviewed de novo. United States v. Hall, 977 F.2d 861, 863 (4th
Cir. 1992).
Gomez-Salamanca takes issue with the district court’s finding that
he was ineligible for the departure in question because the term of
imprisonment imposed for his prior aggravated felony exceeded one
year. Gomez-Salamanca contends that because two years of the three-
year term he received for the aggravated felony were suspended, the
"term of imprisonment" imposed was actually one year, rendering
him eligible for the departure under Application Note 5.
After review, we conclude that the district court did not misappre-
hend its authority to depart and properly determined that Gomez-
Salamanca was not in fact eligible for the departure at issue. See
United States v. Chavez-Valenzuela, 170 F.3d 1038 (10th Cir. 1999)
(holding, in context of potential USSG § 2L1.2 departure under
Application Note 5, that "term of imprisonment" for prior aggravated
felony was five years even though the sentence was stayed and the
defendant placed on probation on condition he serve 45 days in jail);
United States v. Yanez-Huerta, 207 F.3d 746, 748-49 (5th Cir.), cert.
denied, 531 U.S. 981 (2000).
UNITED STATES v. GOMEZ-SALAMANCA 3
We accordingly affirm Gomez-Salamanca’s sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED