                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                        _______________________

                              No. 98-51212
                        _______________________

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                   versus

LUIS GILBERTO CADENA-GUERRERO,

                                                    Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                          (EP-98-CR-1019)
_________________________________________________________________

                            December 20, 1999

Before JONES, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

          Appellant Cadena pled guilty to illegal re-entry after

deportation and was sentenced to 46 months in prison with three

years of non-reporting supervised release.         Following his guilty

plea, Cadena filed a motion for downward departure pursuant to

U.S.S.G. § 2L1.2, application note 5.          The district court denied

the   departure    motion    and   sentenced     Cadena   to   46   months

imprisonment.     Cadena has appealed.



      *
      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this opinion should not be published and is not precedent except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.
          This court reviews the district court’s application and

interpretation   of   the   Sentencing    Guidelines   de   novo   and   its

findings of fact for clear error.        United States v. Montoya-Ortiz,

7 F.3d 1171, 1179 (5th Cir. 1993).             However, this court has

jurisdiction to review a defendant’s challenge to a sentence only

if it was imposed in violation of law, imposed as a result of an

incorrect application of the Guidelines, resulted from an upward

departure, or was unreasonably imposed for an offense not covered

by the sentencing guidelines.      United States v. DiMarco, 46 F.3d

476, 477 (5th Cir. 1995)(citing 18 U.S.C. § 3742). “The imposition

of a lawful sentence coupled with the decision not to depart from

the guidelines provides no ground for relief.”         Id. (citing United

States v. Miro, 29 F.3d 194, 198-99 (5th Cir. 1994)).              In this

case, jurisdiction lies only if the sentencing court’s refusal to

depart downward resulted from a violation of law or misapplication

of the Guidelines.    Id.   In addition, a refusal to depart downward

is a violation of law only if the court mistakenly assumes that it

lacks authority to depart.     United States v. Burleson, 22 F.3d 93,

95 (5th Cir. 1994).     Furthermore, “something in the record must

indicate that the district court held such an erroneous belief.”

United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).           In

this case, the district court indicated that it lacked authority to

depart downward, and this court has jurisdiction to review whether

the refusal was proper.



                                   2
            The base offense level for the crime of illegal reentry

is eight.     U.S.S.G. § 2L1.2(a).         But Cadena’s base level was

increased by 16 levels since Cadena had reentered the United States

after being deported for committing an aggravated felony.                   In

October 1997, Cadena had been convicted of possession with intent

to distribute marijuana, which is an aggravated felony under 8

U.S.C. §    1101(a)(43).    Cadena       received   a   16    month   suspended

sentence for the possession offense.

            Application note 5 of § 2L1.2 provides that if:

            (A)   the  defendant   has   previously   been
            convicted of only one felony offense; (B) such
            offense was not a crime of violence or
            firearms offense; and (C) the term of
            imprisonment imposed for such offense did not
            exceed one year, a downward departure may be
            warranted based on the seriousness of the
            aggravated felony.

Cadena does not dispute the 16-level enhancement since he admits he

was deported after being convicted for an aggravated felony.               The

Government does not dispute that the felony was a single, non-

violent offense.     Thus, the only issue on appeal is whether a

suspended sentence for an aggravated felony constitutes a “term of

imprisonment imposed.”

            Although this is an issue of first impression in this

circuit, the answer is easy.    Application note 5 does not define

“term of imprisonment imposed”, nor does it explicitly incorporate

the definition set out in § 1101(a)(48)(B).                  Cadena’s argument

rests on application notes and amendments to the guidelines alone,


                                     3
which, he asserts, show that “term of imprisonment” should be read

as term of imprisonment served as opposed to imposed.

             The government contends, however, that the meaning of

“term   of   imprisonment      imposed”   is   determined    by   8   U.S.C.   §

1101(a)(48)(B), which provides:

             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.

Since   §    2L1.2   defines    aggravated     felony   in   relation    to    §

1101(a)(43), the Government argues that the definition of “term of

imprisonment” set out in § 1101(a)(48)(B) also applies.                   As a

result, a term of imprisonment includes a period of incarceration

“regardless of any suspension of the imposition or execution of

that sentence.”

             The government’s position was essentially adopted by this

court in United States v. Banda-Zamora, which concluded that

“§ 1101 offers a series of definitions applicable to the entire

chapter [such that] the definition in § 1101(a)(48)(B) applies

recursively” to the other definitions in § 1101(a)(43).               178 F.3d

728, 730 (5th Cir. 1999).          Thus, “[a]ny reference to a term of

imprisonment ... with respect to an offense” refers to any offense

defined in chapter § 1101.         As noted, § 2L1.2 defines aggravated

felony in relation to § 1101(a)(43), and Cadena admits that his

prior possession charge falls within the § 1101(a)(43) definition.

                                      4
Since application note 5 refers to a term of imprisonment imposed

with     respect     to   an     offense       defined    by     §   1101(a)(43),

§ 1101(a)(48)(B) applies.          As a result, the “term of imprisonment

imposed”    in   §   2L1.2     includes    suspended     sentences    (i.e.,   the

sentence imposed regardless of any suspension of the imposition or

execution of that imprisonment).

            The Tenth Circuit has previously adopted this reasoning.

See United States v. Chavez-Valenzuela, 170 F.3d 1038 (10th Cir.

1999).    And before the amendment of the guidelines on which Cadena

relies, other circuit courts which addressed “term of imprisonment”

under of § 2L1.2 took it to mean the sentence imposed, regardless

of suspensions, rather than the time actually served.                  See United

States v. Galicia-Delgado, 130 F.3d 518, 520 (2d Cir. 1997); United

States v. Ramos-Garcia, 95 F.3d 369, 371-72 (5th Cir. 1996), cert.

denied, 519 U.S. 1083 (1997); United States v. Cordova-Beraud, 90

F.3d 215, 218-19 (7th Cir. 1996).               The changes made by the 1996

amendments do not suggest that the legislature meant to replace

this understanding of the term.

            Cadena is not entitled to a downward departure under §

2L1.2 if a term of imprisonment of more than one year was imposed

for his prior aggravated felony.              Since § 2L1.2 defines aggravated

felony in relation to § 1101(a)(43), and since § 1101(a)(48)(B)

applies    recursively,      “term   of       imprisonment     imposed”   includes

suspended sentences. Accordingly, the sentence is AFFIRMED.



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