United States v. Sanches-Rivas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
RENE HUGO SANCHES-RIVAS, a/k/a
Rene H. Sanchez, a/k/a Hugo  No. 02-4595
Sanchez, a/k/a Rene Hugo Sanchez,
a/k/a Rene Hugh Sanchez, a/k/a
Hugh Hugo Sanchez,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CR-02-77-A)
Submitted: April 3, 2003
Decided: May 20, 2003
Before MOTZ and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Dale Warren Dover, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Lani R. Miller, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. SANCHES-RIVAS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Rene Hugo Sanches-Rivas appeals his sentence for illegal reentry
after deportation, in violation of 8 U.S.C. § 1326(a), (b)(2) (2000).
Sanches-Rivas raises only one issue on appeal, contending that the
district court erred in imposing an eight-level enhancement pursuant
to U.S. Sentencing Guidelines Manual ("USSG") § 2L1.2(b)(1)(C)
(2001). Citing Application Note 1(A)(iv), he argues that his May
1995 state conviction for petty larceny should not have qualified as
an aggravated felony because eleven months of his twelve-month sen-
tence were suspended.
We disagree. We find that the application note cited by Sanches-
Rivas has no effect on USSG § 2L1.2(b)(1)(C) as it merely defines
the term "sentence imposed"—a term that does not appear in subsec-
tion (C) of the Guideline.
Moreover, Application Note 2 indicates that "[f]or purposes of sub-
section (b)(1)(C), ‘aggravated felony’ has the meaning given that term
in 8 U.S.C. § 1101(a)(43)." That section states that the term includes
"a theft offense . . . for which the term of imprisonment [is] at least
one year." 8 U.S.C. § 1101(a)(43)(G) (2000); see Wireko v. Reno, 211
F.3d 833, 835 n.2 (4th Cir. 2000) (noting that "is" or "was" are the
most logical candidates for the missing verb); United States v. Banda-
Zamora, 178 F.3d 728, 729-30 (5th Cir. 1999) (holding that the miss-
ing verb does not render the statute unconstitutionally vague). The
definition of "aggravated felony" is further amplified by 8 U.S.C.
§ 1101(a)(48)(B), which provides that "[a]ny 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."
UNITED STATES v. SANCHES-RIVAS 3
Accordingly, based on our reading of the relevant statutes, we find
that a suspended sentence meets the aggravated felony definition of
§ 1101(a)(43). See United States v. Echavarria-Escobar, 270 F.3d
1265, 1268-70 (9th Cir. 2001) (collecting cases), cert. denied, 535
U.S. 1069 (2002).
We therefore uphold the eight-level enhancement pursuant to
USSG § 2L1.2(b)(1)(C) and affirm Sanches-Rivas’s sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED