                    UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.

 ERNESTO CHAVEZ-VALENZUELA,                           No. 98-4029
 also known as Ernesto Chavez-
 Quintero,

       Defendant-Appellant.


                                    ORDER

                              Filed March 26, 1999


Before BALDOCK, EBEL and MURPHY, Circuit Judges.


      Appellee’s motion to publish the order and judgment filed on October 14,

1998, is granted.

                                           Entered for the Court

                                           Patrick Fisher, Clerk of Court

                                           By: Keith Nelson
                                               Deputy Clerk
                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                      PUBLISH
                                                                      OCT 14 1998
                     UNITED STATES COURT OF APPEALS
                                                                 PATRICK FISHER
                                                                          Clerk
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.

 ERNESTO CHAVEZ-VALENZUELA,                                No. 98-4029
 also known as Ernesto Chavez-
 Quintero,

          Defendant-Appellant.


                    Appeal from the United States District Court
                               for the District Utah
                              (D.C. No. 97-CR-296-J)


Submitted on the briefs: *

Richard Mauro, Salt Lake City, for Defendant-Appellant.

Paul M. Warner, United States Attorney and Mark K. Vincent, Assistant United
States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.


Before BALDOCK, EBEL 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 cause therefore is
ordered submitted without oral argument. Appellee’s motion to publish the order and
judgment filed on October 14, 1998, is granted.
EBEL, Circuit Judge.


      On September 24, 1997, the government charged Ernesto Chavez-

Valenzuela with unlawful reentry of a deported alien in violation of 8 U.S.C. §

1326, and filed a Notice of Sentencing Enhancement due to a prior “aggravated

felony” for possession of a controlled substance. Chavez-Valenzuela

subsequently entered a guilty plea to the illegal entry charge, and moved for a

downward departure under United States Sentencing Guidelines (“USSG”) §

2L1.2, comment. n.5 (“Application Note 5”). The district court denied the

motion, finding that Application Note 5 was inapplicable. Chavez-Valenzuela

appeals. We affirm.

      We have jurisdiction to review the district court’s legal conclusion

regarding the applicability of Application Note 5. See United States v. Castillo,

140 F.3d 874, 887-88 (10th Cir. 1998). We review the district court’s

interpretation and application of the Sentencing Guidelines de novo. See United

States v. Pappert, 112 F.3d 1073, 1078 (10th Cir. 1997).

      USSG § 2L1.2(b)(1)(A) mandates a sentencing enhancement of 16 levels

for unlawful reentry after a criminal conviction for an aggravated felony.

However, Application Note 5 provides that if

      (A) the defendant has previously been convicted of only one felony
      offense; (B) such offense was not a crime of violence or firearms

                                       -2-
      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.

For possession of a controlled substance, a Utah state court sentenced Chavez-

Valenzuela to a term “not to exceed five years,” but stayed the sentence and

placed him on 36 months’ probation on terms which included 45 days in jail. The

district court, finding that Chavez-Valenzuela’s “term of imprisonment” under

criterion (C) was five years, the maximum of his indeterminate sentence, 1 held

Application Note 5 to be inapplicable.

      On appeal, Chavez-Valenzuela contends that his “term of imprisonment”

was 45 days, his actual time served. He analogizes “term of imprisonment” in

Application Note 5 to “sentence of imprisonment” in USSG § 4A1.2(b).

Although § 4A1.2(b)(1) defines “sentence of imprisonment” for purposes of

computing criminal history as “the maximum sentence imposed,” § 4A1.2(b)(2)

specifically excludes any portion of the sentence that was suspended. Chavez-

Valenzuela argues that the portion of his sentence not suspended, and therefore

his “term of imprisonment,” was forty-five days.




      1
       An indeterminate sentence is a “sentence to imprisonment for the
maximum period defined by law, subject to termination . . . at any time after
service of the minimum period.” United States v. Reyes-Castro, 13 F.3d 377, 380
(10th Cir. 1993) (quoting Black’s Law Dictionary 694 (5th ed. 1979)).

                                         -3-
      We disagree. As the government points out, the more appropriate

definition of “term of imprisonment” can be found at 8 U.S.C. § 1101(48), within

the definitional section of Chapter 12—the “Immigration and Nationality” chapter

of Title 8 which encompasses Chavez-Valenzuela’s crime of illegal reentry under

§ 1326. § 1101(48) provides:

      Any reference to a term of imprisonment or sentence with respect to
      an offense is deemed to include the period of incarceration or
      confinement ordered by a court of law regardless of any suspension
      of the imposition or execution of that sentence of imprisonment in
      whole or in part.

In addition to this statutory definition, other circuits which have addressed the

phrase “term of imprisonment” in the context of a prior version of § 2L1.2 2 have

taken it to mean the sentence imposed, regardless of any suspension, rather than

the time actually served. See United States v. Galicia-Delgado, 130 F.3d 518,

520 (2d Cir. 1997); United States v. Cordova-Beraud, 90 F.3d 215, 218-19 (7th

Cir. 1996); United States v. Ramos-Garcia, 95 F.3d 369, 371-72 (5th Cir. 1996),

cert. denied 117 S. Ct. 751 (1997). Thus, we hold that Chavez-Valenzuela’s




      2
       The present version of § 2L1.2 became effective on November 1, 1997.
See USSG Manual, App. C, amend. 562 (1998). The prior version did not
contain the current Application Note 5, but did contain the phrase “term of
imprisonment” in another application note, one defining aggravated felony to
include “any crime of violence . . . for which the term of imprisonment imposed
(regardless of any suspension of such imprisonment) is at least five years.” Id.
(quoting deleted Application Note 7).

                                         -4-
“term of imprisonment” was the sentence imposed by the state court, not the 45

days he actually served.

      As the state court sentenced Chavez-Valenzuela to a term of imprisonment

“not to exceed five years,” we need to decide whether this indeterminate sentence

“did not exceed one year” as required by criterion (C) of Application Note 5. We

conclude that Chavez-Valenzuela’s term of imprisonment did exceed one year,

and was in fact five years, because we measure the term of imprisonment for an

indeterminate sentence by the possible maximum term of imprisonment. See

United States v. Reyes-Castro, 13 F.3d 377, 379-80 (10th Cir. 1993) (finding that

indeterminate sentence “not to exceed five years” was term of imprisonment of

five years); see also Nguyen v. I.N.S., 53 F.3d 310, 311 (10th Cir. 1995)

(approving Board of Immigration Appeals’ measurement of indeterminate

sentence by possible maximum term of imprisonment); Galicia-Delgado, 130 F.3d

at 520-21 (upholding § 2L1.2 enhancement on ground that sentence of two and a

half to seven and a half years constituted term of imprisonment of at least five

years, and observing that “for more than a century, sentences for variable or

unspecified periods have been treated as sentences for the maximum period

specified”); Cordova-Beraud, 90 F.3d at 218-20 (upholding § 2L1.2 enhancement

on ground that indeterminate sentence of two to ten years constituted term of

imprisonment of at least five years because “the upper bound of an indeterminate


                                        -5-
sentence” is controlling); United States v. Quinonez-Terrazas, 86 F.3d 382, 382-

83 (5th Cir. 1996) (upholding § 2L1.2 enhancement on ground that sentence of

four to ten years constituted term of imprisonment of at least five years).

      Since Chavez-Valenzuela’s five-year term of imprisonment exceeded the

one-year maximum specified in Application Note 5, the district court properly

refused to consider whether to grant Chavez-Valenzuela a downward departure

under that provision.

      The judgment of the district court is therefore AFFIRMED.




                                         -6-
