                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              AUG 3 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 98-4165
                                                             (D. Utah)
 CARLOS MORA-PERALTA,                                 (D.Ct. No. 98-CR-188)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, 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 case is

therefore ordered submitted without oral argument.



      Appellant Carlos Mora-Peralta appeals the two- to three-year term of


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
supervised release imposed by the district court at sentencing. We exercise our

jurisdiction under 28 U.S.C. § 1291 and affirm.



      The government indicted Mr. Mora-Peralta for illegal reentry after

deportation in violation of 8 U.S.C § 1326. At the same time, the government

filed a notice of sentencing enhancement under 8 U.S.C. § 1326(b)(2), requesting

the district court enhance Mr. Mora-Peralta’s sentence based on his prior

conviction for an aggravated felony, thereby increasing his maximum term of

imprisonment to twenty years. Following Mr. Mora-Peralta’s guilty plea, the

district court applied the enhancement under 8 U.S.C. § 1326(b)(2) based on his

prior conviction, and sentenced him to 46 months in prison and a two- to three-

year term of supervised release in conformance with the twenty-year maximum

term of imprisonment.



      On appeal, Mr. Mora-Peralta claims the district court improperly calculated

his term of supervised release. While Mr. Mora-Peralta agrees the maximum term

of imprisonment must be used to calculate the term of his supervised release, he

suggests the maximum term of imprisonment must be premised solely on the base

offense for which he was convicted, without any enhancement for prior

convictions. Because the unenhanced, maximum sentence for reentry after


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deportation is only two years, he asserts his offense is a Class E felony subjecting

him to only a one-year term of supervised release, rather than a Class C felony

subjecting him to a three-year term of supervised release.



      Generally, we review the district court’s factual findings for clear error and

its interpretation of the Sentencing Guidelines de novo. See United States v.

Flores, 149 F.3d 1272, 1279 (10th Cir. 1998), cert. denied, 119 S. Ct. 849 (1999).

However, because Mr. Mora-Peralta did not object to the term of supervised

release prior to or at sentencing, we review the district court’s challenged

interpretation of the applicable statutes for plain error, see United States v.

Farnsworth, 92 F.3d 1001, 1007 (10th Cir.), cert. denied, 519 U.S. 1034 (1996);

see also Fed. R. Crim. P. 52(b).



      By statute, the term of any supervised release is based on the maximum

term of imprisonment authorized for the offense committed. See 18 U.S.C.

§§ 3559(a) & 3583(b); U.S.S.G. § 5D1.2(a). The United States Supreme Court

has interpreted “maximum term authorized” to “include all applicable statutory

sentencing enhancements.” United States v. LaBonte, 520 U.S. 751, 753 (1997).

In applying this definition to sentencing determinations, the Supreme Court has

concluded that “[w]here Congress has enacted a base penalty for first-time


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offenders or nonqualifying repeat offenders, and an enhanced penalty for

qualifying repeat offenders, the ‘maximum term authorized’ for the qualifying

repeat offenders is the enhanced, not the base term.” Id. at 759.



      Under the sentencing statutes at issue in this case, the maximum term of

imprisonment authorized for illegal reentry of a deported alien is two years,

unless the deportation was “subsequent to a conviction for commission of an

aggravated felony,” in which case, the maximum term of imprisonment authorized

is “not more than 20 years.” 8 U.S.C. §§ 1326(a)(2) & (b)(2). Because Mr.

Mora-Peralta’s removal from the country followed his conviction for an

aggravated felony, it is clear his maximum term of imprisonment under the

applicable statutory sentencing enhancement, 8 U.S.C. § 1326(b)(2), is twenty

years. An offense with a maximum term of imprisonment of twenty years is

classified as a Class C felony under 18 U.S.C. § 3559(a)(3), and the length of

supervised release for a Class C felony is “not more than three years,” 18 U.S.C.

§ 3583(b)(2); see also U.S.S.G. § 5D1.2(a)(2). Under these circumstances, the

district court did not err in sentencing Mr. Mora-Peralta to a two- to three-year

term of supervised release.



      For the foregoing reasons, the sentence of the district court is AFFIRMED.


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Entered by the Court:

WADE BRORBY
United States Circuit Judge




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