                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         JUN 21 2001
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                     No. 99-5217
                                                     (D.C. No. 99-CR-1-C)
 BENITO ORTEGA-GARCIA, a/k/a                             (N.D. Okla.)
 Benito Ortega,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BRORBY, and BRISCOE, Circuit Judges.


       Mr. Ortega-Garcia appeals from his sentence for unlawful reentry of a

deported alien, 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742, and affirm.



                                     I. Background

       In 1996, Mr. Ortega-Garcia was convicted of assault with a dangerous

weapon, a felony under Oklahoma law, Okla. Stat. tit. 21 § 645. I R. doc. 25, ex.


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
A, at 1; IV R. at 9-12, after having chased his girlfriend around a parking lot,

grabbed her shirt collar, knocked her to the ground, slapped her, and threatened to

stab her with a pocket knife before witnesses intervened. II R. at 7 (presentence

report). He was given a two-year suspended sentence, I R. doc. 25, ex. A, at 2,

and was later deported. II R. at 7. Shortly thereafter, he returned to Oklahoma

and was arrested for having violated the terms of his suspended sentence. Id. Mr.

Ortega-Garcia’s suspended sentence was revoked, id. at 9, and he was sentenced

to one year of imprisonment. Id. After serving his state sentence, Mr. Ortega-

Garcia was charged and convicted in federal court of unlawful reentry of a

deported alien, 8 U.S.C. § 1326. I R. doc. 28, at 1.

      At sentencing, the district court concluded that Mr. Ortega-Garcia’s

conviction for assault with a dangerous weapon was an aggravated felony. IV R.

at 16-17. The district court therefore increased Mr. Ortega-Garcia’s offense level

sixteen levels, and sentenced him to sixty-three months of imprisonment and three

years of supervised release. Id. at 30; I R. doc. 28, at 2-3. Mr. Ortega-Garcia

appeals from this enhancement and raises two issues for our consideration. 1



      1
         At oral argument, counsel for Mr. Ortega-Garcia waived Mr. Ortega-
Garcia’s argument in his brief that “[d]ouble counting caused him to get a longer
sentence.” Aplt. Br. at 8. Counsel also conceded that Mr. Ortega-Garcia’s due
process argument that his sentence was imposed in violation of Apprendi v. New
Jersey, 530 U.S. 466 (2000), Aplt. Br. at 18-19, was foreclosed by our precedent.
We therefore do not address those arguments here.

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                                   II. Discussion

A.    The Government’s Burden of Proof

      Mr. Ortega-Garcia first argues that the government should have been

required to prove that Mr. Ortega-Garcia’s prior conviction was an aggravated

felony by clear and convincing evidence because the aggravated felony

enhancement significantly increased his sentence. Mr. Ortega-Garcia fails to cite

any case that stands for this proposition. Neither Apprendi v. New Jersey, 530

U.S. 466 (2000), Almendarez-Torres v. United States, 523 U.S. 224, 248 (1998),

nor United States v. Watts, 519 US. 148, 156 (1997), upon which Mr. Ortega-

Garcia relies, are availing. In fact, in United States v. Martinez-Villalva, 232

F.3d 1329 (10th Cir. 2000), decided after Apprendi, we reiterated the long-

standing rule that “it is the government’s burden to prove the facts supporting a

sentence enhancement by a preponderance of the evidence.” Martinez-Villalva,

232 F.3d at 1333 (citation omitted). This is true even if the enhancement will

substantially increase the defendant’s sentence. United States v. Segien, 114 F.3d

1014, 1021 (10th Cir. 1997). Accordingly, Mr. Ortega-Garcia’s argument fails.

B.    Prior Conviction an Aggravated Felony

      Mr. Ortega-Garcia next argues that the district court erred in concluding

that his prior conviction was an aggravated felony. This argument also fails. At

sentencing, the district court concluded that Mr. Ortega-Garcia’s prior conviction


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clearly fell within the definition of an aggravated felony. IV R. at 16. “We

review the district court’s interpretation and application of the Sentencing

Guidelines de novo.” Martinez-Villalva, 232 F.3d at 1332 (citation and internal

quotations omitted). If a defendant is convicted of unlawful entry of a deported

alien and was previously deported after conviction for an aggravated felony, the

defendant’s base offense level is increased sixteen levels. U.S.S.G. §

2L1.2(b)(1)(A). An aggravated felony includes “a crime of violence . . . for

which the term of imprisonment [is] at least one year . . . .” 8 U.S.C. §

1101(a)(43)(F).

      A crime of violence is

      (a) an offense that has as an element the use, attempted use, or
      threatened use of physical force against the person or property of
      another, or (b) any other offense that is a felony and that, by its
      nature, involves a substantial risk that physical force against the
      person or property of another may be used in the course of
      committing the offense.

18 U.S.C. § 16. We look only to the statutory definition of assault with a

dangerous weapon to determine whether the offense is a crime of violence.

United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993) (“[A] court must

only look to the statutory definition, not the underlying circumstances of the

crime, to make this determination.”) (citation omitted). Assault with a dangerous

weapon occurs where a person

      with intent to do bodily harm and without justifiable or excusable

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      cause, commits any assault, battery, or assault and battery upon the
      person of another with any sharp or dangerous weapon, . . . ,
      although without the intent to kill such person or to commit any
      felony, [and is] upon conviction . . . a felony punishable by
      imprisonment in the penitentiary not exceeding ten (10) years, or by
      imprisonment in a county jail not exceeding one (1) year.

Okla. Stat. tit. 21 § 645 (1983). It is readily apparent that assault with a

dangerous weapon satisfies either definition of crime of violence. It has as an

element the use, attempted use, and threatened use of physical force against

another person, 18 U.S.C. § 16(a), and, alternatively, is a felony that involves a

substantial risk of physical force. Id. § 16(b). Therefore, because Mr. Ortega-

Garcia was previously convicted for a crime of violence, and because he was

sentenced to a term of imprisonment at least one year in length, the district court

correctly concluded that Mr. Ortega-Garcia had been convicted of an aggravated

felony.

      Mr. Ortega-Garcia argues he did not commit a crime of violence because

his term of imprisonment was not at least one year in length. To determine

whether Mr. Ortega-Garcia’s sentence was a term of imprisonment of at least one

year, we look to “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)(B)

(emphasis added). Accordingly, Mr. Ortega-Garcia’s original two-year sentence

is deemed to be for a term of imprisonment of at least one year, notwithstanding

                                          -5-
the fact that the sentence was suspended. Furthermore, Mr. Ortega-Garcia’s

subsequent sentence of one-year imprisonment for violating the terms of his

suspended sentence also constitutes a term of imprisonment of at least one year.

      Mr. Ortega-Garcia cites Martinez-Villalva, apparently for the proposition

that the government failed to prove that Mr. Ortega-Garcia’s prior conviction was

an aggravated felony by a preponderance of the evidence. Martinez-Villalva is

readily distinguishable from this case. In Martinez-Villalva, the government

failed to prove by a preponderance of the evidence that the defendant received a

suspended sentence rather than an original sentence of probation. 232 F.3d at

1333. The only evidence submitted by the government regarding the defendant’s

theft conviction was a state court journal entry. Id. Furthermore, the journal

entry did not “state that the court suspended the sentence of imprisonment . . . .”

Id. By way of contrast, the judgment and sentence submitted by the government

in this case clearly states that Mr. Ortega-Garcia was convicted of a felony and

received a suspended sentence. I R. doc. 25, ex. A, at 2. Furthermore, two

witnesses provided uncontroverted testimony at the sentencing hearing that Mr.

Ortega-Garcia’s prior conviction was an aggravated felony. IV R. at 4-15. It was

therefore “possible to discern with the required certainty” that Mr. Ortega-Garcia

was convicted of a felony and received a suspended sentence as opposed to an

original sentence of probation. Martinez-Villalva, 232 F.3d at 1334 (citation and


                                         -6-
internal quotations omitted).

      Finally, Mr. Ortega-Garcia argues that because sentences for unlawful

reentry of a deported alien in the Southern District of California are much shorter

than those imposed in other federal districts, see United States v. Banuelos-

Rodriguez, 173 F.3d 741, 742 (9th Cir.), opinion withdrawn by, 195 F.3d 454 (9th

Cir. 1999), this disparity somehow diminishes the violent nature of Mr. Ortega-

Garcia’s conviction for assault with a dangerous weapon. He also argues that

“[t]he aggravated felony status was particularly contrived by the US Attorney’s

role in this case while working with the prosecutor in the Tulsa County Juvenile

Court.” Aplt. Br. at 16 (emphasis in original). Apparently, a proceeding had

commenced in family court to relinquish Mr. Ortega-Garcia’s parental rights to a

child he fathered in 1997. I R. doc. 17, at 2. Both the alleged sentencing

disparity and the government’s alleged participation in the family court

proceedings are totally irrelevant to the question before us.

      AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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