                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 11 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 02-4234
                                                   (D.C. No. 2:01-CV-759-K
    FLORENTINO RODRIGUEZ-                             & 2:00-CR-262-K)
    GARCIA,                                               (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , HENRY , and MURPHY , 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      This order and judgment is not binding precedent, except under the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.
      Florentino Rodriguez-Garcia, a federal prisoner proceeding pro se, appeals

from the district court’s order denying his motion to vacate, set aside, or correct

his sentence filed pursuant to 28 U.S.C. § 2255. This court granted a certificate

of appealability (COA) on the following issue: whether his trial counsel was

constitutionally ineffective for failing to move for a downward departure based on

Mr. Rodriguez-Garcia’s sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)

(1999), where the underlying “aggravated felony” was his conviction for

attempted possession with intent to distribute a controlled substance for which he

received 30 days in jail. The relevance of Application Note 5 and Amendment

632 was also to be addressed. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm. We deny a COA on the remaining issues.

      Mr. Rodriguez-Garcia was convicted on a guilty plea of illegal reentry of a

deported alien in violation of 8 U.S.C. § 1326. After granting his motion for a

downward departure and lowering his criminal history from Category III to

Category II, the district court sentenced him to the guideline minimum of 41

months’ imprisonment, followed by 36 months’ supervised release, and a fee of

$100. In his subsequent § 2255 motion, Mr. Rodriguez-Garcia claimed that his

sentence was too lengthy because his counsel had been ineffective in failing to

move for a downward departure. He maintains that the predicate offense used for




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the “aggravated felony” enhancement was so minor that a downward departure

was appropriate. The district court denied the § 2255 motion.

       To establish that counsel provided ineffective assistance, a defendant must

show both that his attorney’s representation was deficient and that the attorney’s

substandard performance prejudiced him.        Strickland v. Washington , 466 U.S.

668, 687 (1984). We review the district court’s fact findings in a § 2255

proceeding under the clearly erroneous standard, and the performance and

prejudice issues de novo because they involve mixed questions of fact and law.

United States v. Haddock , 12 F.3d 950, 955 (10th Cir. 1993). We also review

de novo the district court’s interpretation of the sentencing guidelines.    United

States v. Torres-Aquino , 334 F.3d 939, 940 (10th Cir. 2003).        Because Mr.

Rodriguez-Garcia is representing himself on appeal, his pleadings will be liberally

construed. Haines v. Kerner, 404 U.S. 519, 520 (1972).

       Mr. Rodriguez-Garcia alleges that his trial attorney provided

constitutionally ineffective assistance because he did not request a reduction in

the sixteen-level enhancement based on his prior aggravated felony. At the time

he was sentenced, USSG § 2L1.2(b)(1)(A) required a sixteen-level enhancement

if the defendant previously had been convicted of an aggravated felony, as

defined in 8 U.S.C. § 1101(a)(43). Mr. Rodriguez-Garcia does not dispute that

his underlying felony fits this definition. Therefore, we consider whether he was


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entitled to a downward departure authorized by Application Note 5.      1
                                                                             At issue

here is the condition that a downward departure was authorized if the term of

imprisonment imposed for the underlying offense did not exceed one year. USSG

§ 2L1.2, Application Note 5.

      Even though Mr. Rodriguez-Garcia received a 30-day jail sentence as a

condition of his probation for the underlying felony, the sentence imposed was for

an indeterminate term of zero to five years. The fact that his sentence was

suspended is irrelevant; the “term of imprisonment” referred to in Application

Note 5 is the sentence imposed.    United States v. Marquez-Gallegos        , 217 F.3d

1267, 1269-70 (10th Cir. 2000). Moreover, “we measure the term of

imprisonment for an indeterminate sentence by the possible maximum term of

imprisonment,” here, five years.   United States v. Chavez-Valenzuela        , 170 F.3d

1038, 1040 (10th Cir. 1999). Therefore, Application Note 5 does not apply to Mr.

Rodriguez-Garcia.


1
    At the time of Mr. Rodriguez-Garcia’s sentencing, Application Note 5 to
USSG § 2L1.2 stated in part:

             If subsection (b)(1)(A) applies and (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.


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      Amendment 632 also does not apply. This amendment changed

“§ 2L1.2(b)’s aggravated-felony enhancement to provide for an increase of eight

to sixteen levels according to the seriousness of the earlier aggravated felony.”

Torres-Aquino , 334 F.3d at 940. It became effective on November 1, 2002, and

may not be applied retroactively to reduce a defendant’s sentence.     Id. at 940-41.

Mr. Rodriguez-Garcia was sentenced on December 11, 2000, before the

amendment’s effective date.

      In conclusion, we hold that Mr. Rodriguez-Garcia has failed to demonstrate

that his trial attorney’s performance was constitutionally deficient or that he

suffered any prejudice as a result of his attorney’s representation.

      The judgment of the district court is AFFIRMED. Issuance of a COA is

denied on the remaining issues Mr. Rodriguez-Garcia raised. The mandate shall

issue forthwith.



                                                       Entered for the Court



                                                       Michael R. Murphy
                                                       Circuit Judge




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