   Case: 10-10483      Document: 00511563126        Page: 1    Date Filed: 08/05/2011




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                         FILED
                                                                       August 5, 2011
                                     No. 10-10483
                                                                        Lyle W. Cayce
                                                                             Clerk



UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

versus

ALEJANDRO RIOS-CORTES,

                                                Defendant-Appellant.




                  Appeal from the United States District Court
                       for the Northern District of Texas




Before SMITH and STEWART, Circuit Judges.*
JERRY E. SMITH, Circuit Judge:


      Alejandro Rios-Cortes appeals his sentence for illegal reentry following
deportation. The presentence report recommended that the court increase his
base offense level, pursuant to U.S.S.G. § 2L1.2(b)(1)(C), for a prior conviction
for theft, an aggravated felony. That conviction resulted in a two-year sentence

      *
       Judge Garwood was a member of this panel but died, after oral argument, on July 14,
2011. This matter is decided by a quorum. See 28 U.S.C. § 46(d).
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                                  No. 10-10483

that was probated for five years. Rios-Cortes violated the terms of his probation,
and so it was revoked, but the sentencing court reduced his sentence to 180 days
instead of imposing the original two-year term. After serving that sentence, Rios
was deported. He then illegally reentered the United States, was arrested for
the instant offense, and pleaded guilty.
      At sentencing, Rios-Cortes argued that his prior conviction was not an
aggravated felony. A theft offense is an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(G) if the term of imprisonment is for at least one year. Rios-Cortes
asserted that because his sentence was reduced to a term of less than one year,
the offense was not covered by the statute. The district court disagreed and
applied the enhancement.       “We review a district court’s interpretation of
‘whether the sentencing guidelines apply to a prior conviction . . . de novo.’”
United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir. 2001) (quoting
United States v. Vasquez-Balandran, 76 F.3d 648, 649 (5th Cir. 1996)).
      For purposes of § 1101(a)(43)(G), the “term of imprisonment” is “the period
of incarceration or confinement ordered by a court of law regardless of any sus-
pension of the imposition or execution of that imprisonment or sentence in whole
or in part.” § 1101(a)(48)(B). For purposes of enhancement, a court may con-
sider sentences that have been suspended for probation. United States v. Yanez-
Huerta, 207 F.3d 746 (5th Cir. 1996) (per curiam). Thus, if a defendant was sen-
tenced to a two-year term for theft, the court probated his sentence for five years,
and the defendant completed his probation, a court may treat that conviction as
an aggravated felony even though his sentence was suspended and he served no
jail time.
      In Landeros-Arreola, the defendant had a prior conviction for which he
was sentenced to a term of four years. Once he successfully completed Colora-
do’s Regimented Inmate Training Program, however, the court reduced his sen-
tence from imprisonment to probation. We agreed with defendant that his con-

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                                  No. 10-10483

viction did not qualify as an aggravated felony under § 2L1.2(b)(1)(C), because
his sentence was reduced to probation, not suspended for probation. We noted
that Colorado courts must sentence a defendant to either imprisonment or pro-
bation and may not probate a specific sentence, so the sentence could not have
been suspended. We indicated that a suspended sentence would be treated dif-
ferently, as it was in Vasquez-Balandran.
      In United States v. Retta-Hernandez, 106 F. App’x 879 (5th Cir. 2004) (per
curiam), we distinguished Landeros-Arreola from situations in which the defen-
dant was sentenced to more than one year, the sentence was suspended for a
term of probation, and upon revocation of probation the court reduced the sen-
tence to a term of less than one year instead of the original term. We noted that
if we followed Landeros-Arreola in such cases, the enhancement would not apply,
and the defendant would receive a windfall merely because he violated his term
of probationSSa perverse result. Id. at 883. The enhancement would apply, how-
ever, to a similarly situated defendant who had not violated his probation,
because the suspended term of imprisonment would have been left intact. Thus,
in Retta-Hernandez we declined to extend Landeros-Arreola and held that the
district court had properly considered the original, probated sentence.
      This court reaffirmed the reasoning and holding of Retta-Hernandez in
United States v. Arriola-Cardona, 184 F. App’x 373 (5th Cir. 2006) (per curiam),
and again in United States v. Sanchez, 419 F. App’x 504 (5th Cir. 2011) (per curi-
am). Rios-Cortes attempts to distinguish those cases by arguing that the courts
looked to the sentence as it existed on the date of deportation, but none of the
three opinions mentions such a consideration. Rios-Cortes also cites United
States v. Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010), for the proposition that the
sentence on the date of deportation is controlling. Bustillos-Pena, however, dealt
with a different provision of § 2L1.2, which considers the “sentence imposed,”
§ 2L1.2(b)(1)(A), and not the “term of imprisonment,” § 2L1.2(b)(1)(C). The two

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                                  No. 10-10483

differ in that the sentence imposed “refers only to the portion [of the sentence]
that was not suspended,” § 4A1.2(b)(2), and “the defendant must have actually
served a period of imprisonment on such sentence,” § 4A1.2 cmt.2. A term of
imprisonment, on the other hand, includes the suspended portion of the sen-
tence, and the defendant need not have actually served any time.
      We continue to follow Retta-Hernandez, Arriola-Cardona, and Sanchez,
and we conclude that the district court did not err in sentencing Rios-Cortes. The
judgment of sentence is AFFIRMED.




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