                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                                       No. 99-50712
                                     Summary Calendar


UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,

                                             versus
MARTIN MORENO-RODRIGUEZ,

                                                            Defendant-Appellant.
                 ___________________________________________

                     Appeal from the United States District Court
                         for the Western District of Texas
                           USDC No. EP-98-CR-1314-1
                 ___________________________________________
                                       January 12, 2000
Before POLITZ, HIGGINBOTHAM and WIENER, Circuit Judges.

PER CURIAM:*
       Martin Moreno-Rodriguez appeals his sentence after pleading guilty to illegal

reentry under 8 U.S.C. § 1326. He contends that the district court erred in determining

that it lacked the authority to depart downward under Application Note 5 of U.S.S.G.

§ 2L1.2. He maintains that the phrase “ term of imprisonment imposed,” as used in




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Application Note 5, does not include portions of sentences that are suspended. Our

review of the record and briefs persuades that we should affirm.

       The record reflects that Moreno’s Pennsylvania sentence, rather than being a
suspended sentence, was actually an indeterminate sentence of not less than 84 days

and not more than 23 months.1 Moreno has not demonstrated otherwise.2 Because the

upper end of an indeterminate sentence is used when determining the length of a

sentence for purposes of § 2L1.2,3 the district court did not err either in determining
that Moreno’s “term of imprisonment” exceeded one year or in concluding that Moreno
did not qualify for a downward departure.4
       AFFIRMED.




       1
        United States v. Quinonez-Terrazas, 86 F.3d 382 (5th Cir. 1996).
       2
         United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999) (“A defendant must
affirmatively demonstrate to the district court that he is entitled to the downward departure.”);
United States v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir. 1989)(“As to mitigating or
sentence-reducing factors, the defendant bears the burden of proof.”).
       3
        Quinonez-Terrazas, 86 F.3d at 383.
       4
        § 2L1.2, comment. (n.5).

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