                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 13, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 02-41542
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN CARLOS POSADAS-MENDEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. B-02-CR-211-ALL
                      --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

          Juan Carlos Posadas-Mendez appeals his sentence for his

guilty-plea conviction of being found in the United States

without permission after having been deported.   He argues that

his prior state conviction for misdemeanor assault for which he

was sentenced to one year of imprisonment was not an aggravated

felony under U.S.S.G. § 2L1.2(b)(1)(C) of the 2001 Sentencing

Guidelines and that the increase of his offense level by eight

was thus error.

     *
        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that this opinion should not be published and is not precedent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.
                           No. 02-41542
                                -2-

           Posadas-Mendez acknowledges that a state conviction for

a crime deemed a misdemeanor under state law could still fall

within the definition of 8 U.S.C. § 1101(a)(43)(F) as a crime of

violence punishable by at least one year of imprisonment and thus

be considered an aggravated felony under the pre-2001 version of

§ 2L1.2.   See United States v. Urias-Escobar, 281 F.3d 165, 167-

68 (5th Cir.), cert. denied, 122 S. Ct. 2377 (2002).   He contends

that, because the 2001 Sentencing Guidelines added a definition

for misdemeanor in the notes to § 2L1.2, that section is now

ambiguous as to whether his prior conviction was a misdemeanor or

an aggravated felony and that the rule of lenity should apply.

           The comments to § 2L1.2 in the 2001 Guidelines state

that, for purposes of § 2L1.2(b)(1)(C), the definition of

aggravated felony in § 1101(a)(43) applies.    See § 2L1.2,

comment.(n.2).   There was thus no change in the Sentencing

Guidelines as to what constitutes an aggravated felony under §

2L1.2.   Posadas-Mendez’s state conviction for assault for which

he was sentenced to one year of imprisonment is an aggravated

felony under the current version of § 2L1.2.   See Urias-Escobar,

281 F.3d at 167-68.

           AFFIRMED.
