                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS         December 22, 2003
                       FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 02-41685
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE MIGUEL RODRIGUEZ-MARTINEZ, also known as
Moises Bautista-Tec,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       (L-02-CR-1043-ALL)
                      --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant      Jose     Miguel    Rodriguez-Martinez

("Rodriguez"), whose true name is Moises Bautista-Tec, appeals from

the sentence imposed following his guilty plea to illegal re-entry

following deportation, in violation of 8 U.S.C. § 1326(a).           The

district court applied an eight-level enhancement to Rodriguez's

offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(C) because he has

a prior theft conviction for which he was sentenced to five years'



     *
        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this opinion should not be published and is not precedent except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.
imprisonment, suspended for two years' probation, 74 days in jail,

and a $1,000 fine.

     Rodriguez    argues   that    this   prior   conviction   is   not   an

aggravated felony under § 2L1.2(b)(1)(C) because the sentence

imposed was not at least one year in prison.           Rodriguez relies on

Note 1(A)(iv), which provides that "[i]f all or any part of a

sentence of imprisonment was probated, suspended, deferred, or

stayed, 'sentence imposed' refers only to the portion that was not

probated, suspended, deferred, or stayed."             Rodriguez contends

that, because all of his sentence was probated or suspended except

for 74 days, his offense of conviction is not an aggravated felony.

Rodriguez concedes that his conviction is an aggravated felony

under United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir.

1999), but argues that Banda-Zamora is not controlling because it

was decided before Note 1(A)(iv) was added to the commentary.             He

also contends that Note 1(A)(iv) created an ambiguity, as of result

of which the question must be resolved in his favor under the "rule

of lenity."

     We   are   not   persuaded.     Note   1(A)(iv)    defines   the   term

"sentence imposed" as used in § 2L1.2(b), but that term appears

only in § 2L1.2(b)(1)(A) & (B) and is used in distinguishing

between various felony drug trafficking offenses.           The guideline

section at issue here is § 2L1.2(b)(1)(C), which does not use

the term "sentence imposed."       Note 1(A)(iv) is not applicable in

this case.    Instead, the definition of "aggravated felony" adopted

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by the guidelines from 8 U.S.C. § 1101(a), as interpreted in Banda-

Zamora, applies, and the calculation considers the period of

incarceration without regard to any suspension of the sentence, in

whole    or    in     part.     See   Banda-Zamora,         178   F.3d    at   730;    §

2L1.1(b)(1)(C), comment. (n.2). The fact that Rodriguez's sentence

for theft was suspended except for 74 days does not change the fact

that    it    meets    the    definition       of   an   aggravated      felony   in   §

1101(a)(43).

       Rodriguez also argues, for the first time on appeal, that

8 U.S.C. § 1326(b) is unconstitutional because it treats a prior

conviction for a felony or aggravated felony as a sentencing factor

and not as an element of the offense.                    He acknowledges that his

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998), but wishes to preserve the issue for Supreme

Court review in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).        Apprendi       did   not   overrule       Almendarez-Torres.        See

Apprendi, 530 U.S. at 489-90; see also United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000), and we must follow the precedent set

in Almendarez-Torres "unless and until the Supreme Court itself

determines to overrule it."               Dabeit, 231 F.3d at 984 (internal

quotation and citation omitted).

       AFFIRMED.




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