                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 30 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                   No. 02-4028
                                                   D.C. No. 2:01-CR-269-ST
    JOEL AGUILAR-BAUTISTA,                                (D. Utah)
    also known as Joel Aguilar,

                Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, Chief Judge, ANDERSON and BALDOCK, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant-appellant Joel Aguilar-Bautista pled guilty to illegal re-entry of

a deported alien in violation of 8 U.S.C. § 1326. Pursuant to the United States

Sentencing Commission, Guidelines Manual, (USSG) § 2L1.2(b)(1)(C),

Mr. Aguilar-Bautista was subject to an eight-level sentencing enhancement based

on a prior conviction for an aggravated felony. He was given credit for

acceptance of responsibility and sentenced to thirty-three months of imprisonment

followed by a three-year term of supervised release.

      Mr. Aguilar-Bautista raises two issues on appeal. He uses several theories

to raise the broad argument that his state misdemeanor conviction for attempted

aggravated assault cannot be characterized as an aggravated felony for purposes

of enhancement under the guidelines. We review questions of law related to the

application or interpretation of the sentencing guidelines de novo and the district

court’s factual findings regarding sentencing for clear error. United States v.

Maldonado-Acosta, 210 F.3d 1182, 1183 (10th Cir. 2000). He also argues that

the district court should have found that his prior conviction for attempted

aggravated assault was outside the heartland of other serious aggravated felonies

and that a downward departure was warranted.

                                          I.

      Mr. Aguilar-Bautista’s argument that a state misdemeanor conviction

cannot be considered an aggravated felony for purposes of sentencing under


                                         -2-
USSG § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43) runs contrary to circuit

precedent. “[A]n offense need not be classified as a felony to qualify as an

‘aggravated felony’ as that term is statutorily defined in § 1101(a)(43).” United

States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002), petition for

cert. filed (U.S. July 25, 2002) (No. 02-5568). In looking at the plain language

of the statute, the court explained that “[a]ll § 1101(a)(43)(F) requires is a crime

of violence for which the term of imprisonment is at least one year.” Id.

Mr. Aguilar-Bautista must show that his state conviction was not properly

classified as an aggravated felony or that the term of imprisonment was less

than one year.

      Mr. Aguilar-Bautista tries to carve out an exception to Saenz-Mendoza by

arguing that his conviction for attempted aggravated assault cannot be classified

as an aggravated felony because USSG § 2L1.2, comment. (n.1.(B)(iv)) states

“‘Felony’ means any federal, state, or local offense punishable by imprisonment

for a term exceeding one year.” (emphasis added). He argues that since his

conviction was for 365 days, it did not exceed one year. The definition in the

commentary applies to a felony. Mr. Aguilar-Bautista was sentenced under

§ 2L1.2(b)(1)(C), which applies to a conviction for an aggravated felony. His

state conviction was considered an aggravated felony because for purposes of

§ 2L1.2(b)(1)(C), “aggravated felony” has the meaning given that term in


                                          -3-
8 U.S.C. § 1101(a)(43). Section 1101(a)(43)(F) defines aggravated felony as:

“a crime of violence (as defined in section 16 of Title 18, but not including a

purely political offense) for which the term of imprisonment [is 1] at least one

year.” Therefore, the definition of “felony” in the commentary does not apply.

      Mr. Aguilar-Bautista argues alternatively that he should be sentenced under

USSG § 2L1.2(b)(1)(E). Section 2L1.2(b)(1) instructs that the sentencing court

is to apply the greatest of its five subsections which is applicable. Since

§ 2L1.2(b)(1)(C) clearly applies, it was the subsection properly used for

sentencing.

      Mr. Aguilar-Bautista contends that his state conviction is not an aggravated

felony because he was sentenced to 365 days in jail and 365 days is not

technically a year. The district court correctly found that circuit precedent

contradicts this argument. This court has held that for purposes of sentencing

when an inmate is incarcerated for a term of years, it makes no difference whether

the year is 365 days or 366 days. Yokley v. Belaski, 982 F.2d 423, 425 (10th Cir.

1992). Conversely, 365 days is a year for sentencing purposes.

      Finally, Mr. Aguilar-Bautista argues that his state conviction should not be

considered a felony because he received a suspended sentence and his actual time



1
      Congress mistakenly omitted the word “is” from the definition of
aggravated felony. See 8 U.S.C. § 1101, n.2 (1995).

                                         -4-
served was less than a year. This court has held that a “term of imprisonment”

is the sentence actually imposed, not actually served. United States v.

Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir. 1999). This is in agreement

with the statute which provides, “[a]ny reference to a term of imprisonment or

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.” 8 U.S.C. § 1101(a)(48). The district court properly

characterized Mr. Aguilar-Bautista’s “term of imprisonment” as 365 days.

      Although Mr. Aguilar-Bautista might have it otherwise, a term of

imprisonment is the term ordered by a court, 365 days is still a year, § 2L1.2(b)(1)

mandates that the greatest of its subsections must apply, an aggravated felony is

a crime of violence for which the term of imprisonment is at least one year, and

a state misdemeanor conviction for a crime of violence can be classed as an

aggravated felony for sentencing purposes. From any angle, his argument cannot

prevail.

                                         II.

      Mr. Aguilar-Bautista’s second argument is that the district court erred in

denying a downward departure in his sentencing. “[T]he courts of appeals cannot

exercise jurisdiction to review a sentencing court’s refusal to depart from the


                                         -5-
sentencing guidelines except in the very rare circumstances that the district court

states that it does not have any authority to depart from the sentencing guideline

range for the entire class of circumstances proffered by the defendant.” United

States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998).

      At the sentencing hearing, the district court stated that this case was not

outside of the heartland of cases, and that there were insufficient grounds for

granting a downward departure. R., Vol. II, at 24.

      Therefore, the judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




                                         -6-
