United States v. Posadas-Mendez

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 13, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41542
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS POSADAS-MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-211-ALL
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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.

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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.

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