                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                            ____________________

                               No. 02-41042
                             Summary Calendar
                           ____________________

                         UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

                        LEANDRO GUTIERREZ-ESTRADA,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (B-02-CR-45-1)
_________________________________________________________________
                          March 12, 2003

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Leandro Gutierrez-Estrada, convicted for violating 8 U.S.C. §

1326(a), appeals his sentence. Prior to deportation, Gutierrez was

convicted for possession of marijuana for resale, for which he was

sentenced to two years of custody, suspended for two years of

probation.

     Gutierrez       contends   the     district     court    plainly   erred    by

increasing     his   offense    level    by    12,   pursuant    to   U.S.S.G.    §

2L1.2(b)(1)(B).       See U.S.S.G., cmt. n.1 (A)(iv) (for purposes of


     *
       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this opinion should not be published and is not precedent except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.
determining      whether,    inter    alia,     sentence        imposed    for   drug

trafficking was 13 months or less, “sentence imposed” refers only

to portion of sentence not probated or suspended).                   Given the lack

of controlling authority in this circuit on this issue, and as

discussed below, any error on the part of the district court was

not “clear or obvious” and, therefore, does not constitute plain

error.    See e.g., United States v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994) (en banc).

       Subsection (b)(1)(B) provides for a 12-level enhancement when

the    defendant      was   previously       convicted     of    a   “felony     drug

trafficking offense for which the sentence imposed was 13 months or

less”.    (Emphasis added.)      Arguably, pursuant to § 2L1.2’s above-

referenced    commentary,      Gutierrez’      “sentence        imposed”   was   zero

months, a period “less” than 13 months.                    In other words, and

pursuant to the commentary, even though the entire sentence was

probated, the “sentence imposed” is arguably zero months, because

that was the portion of the sentence not probated.                   Again, because

there is no controlling authority in this circuit, any error did

not meet the required level of being “clear” or “obvious”.

       Gutierrez contends that the sentence-enhancing provisions of

8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light

of    Apprendi   v.   New   Jersey,   530     U.S.   466    (2000).        Gutierrez

acknowledges this issue is foreclosed by Almendarez-Torres v.




                                         2
United States, 523 U.S. 224 (1998), but he seeks to preserve it for

Supreme Court review.

                                                       AFFIRMED




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