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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-50553
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE MANUEL URIAS-ESCOBAR,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
January 23, 2002
Before JONES, SMITH, and
this issue of first impression, we affirm.
EMILIO M. GARZA, Circuit Judges.
I.
JERRY E. SMITH, Circuit Judge:
Urias-Escobar, a native of El Salvador, first
entered the United States in 1990. In 1994, he
Jose Urias-Escobar appeals his seventy-
pleaded guilty of assault with bodily injury, a
month sentence for illegal reentry into the
misdemeanor offense under Texas law. The
United States. He argues that the district
state court sentenced him to one year in jail,
court erred in concluding that his earlier, state
suspended the sentence, and placed him on
conviction for misdemeanor assault was an ag-
probation for one year. He was deported in
gravated felony that warranted an enhanced
1995 and again in 1998.
sentence under U.S.S.G. § 2L1.2 and 8 U.S.C.
§ 1101(a)(43)(F). Finding no error regarding
In September 2000, after he again was

found in Texas, Urias-Escobar pleaded guilty
statements, Williams v. United States, 503
of illegally reentering the United States after
U.S. 193, 199-201 (1992). The guidelines'
deportation pursuant to 8 U.S.C. § 1326-
commentary is given controlling weight if it is
(b)(2).1 The presentence report ("PSR") con-
not plainly erroneous or inconsistent with the
cluded that his state misdemeanor conviction
guidelines. Stinson v. United States, 508 U.S.
constituted an aggravated felony under
36, 42-45 (1993).
U.S.S.G. § 2L1.2 and 8 U.S.C. § 1101(a)-
(43)(F) and, accordingly, recommended that
Section 2L1.2 sets the offense level for
his offense level be increased sixteen points.
violations of § 1326(b). Subsection (a)
After a three-level downward adjustment for
provides a base offense level of 8, and
acceptance of responsibility, Urias-Escobar
subsection (b)(1) mandates a sentencing
faced a guideline range of seventy to eighty-
enhancement "[i]f the defendant previously
seven months' imprisonment.
was deported after a criminal conviction":
Urias-Escobar objected to the PSR, arguing
(A) If the conviction was for an
that his misdemeanor conviction could not, by
aggravated felony, increase by 16 levels.
definition, be an aggravated felony, and thus
the sixteen-level enhancement was error.
(B) If the conviction was for (i) any
Without that enhancement, his guideline range
other felony, or (ii) three or more
would have been nine to fifteen months' im-
misdemeanor crimes of violence or
prisonment. The court overruled the objection
misdemeanor controlled substance
and imposed a seventy-month sentence.
offenses, increase by 4 levels.
II.
The guidelines commentary explains,
Urias-Escobar challenges the district
"`Aggravated felony,' is defined at 8 U.S.C.
court's interpretation of §§ 1326(b)(2), 1101-
§ 1101(a)(43) . . . . `Felony offense' means
(a)(43)(F), and 2L1.2. These are questions of
any federal, state, or local offense punishable
law that we review de novo.2
by imprisonment for a term exceeding one
year." Id., cmt., n.1. Section 1101(a)(43)(F),
Courts are bound to follow each sentencing
in turn, defines "aggravated felony" as "a
guideline, Mistretta v. United States, 488 U.S.
crime of violence . . . for which the term of im-
361, 391 (1989), and accompanying policy
prisonment at2 least one year." 8 U.S.C.
§ 1101(a)(43)(F).3 Id.
1 Title 8 U.S.C. § 1326(b)(2) states in relevant
III.
part that for any alien "whose removal was
Urias-Escobar argues that because he was
subsequent to a conviction for commission of an
convicted of only misdemeanor assault, that
aggravated felony, such alien shall be fined under
offense cannot, by definition, be an aggravated
such Title, imprisoned not more than 20 years."
2 United States v. Santos-Riviera, 183 F.3d
367, 369 (5th Cir. 1999) (de novo review for sta-
tutory construction); United States v. Velazquez-
Overa, 100 F.3d 418, 420 (5th Cir. 1996) (de novo
3 Footnote two in the statute notes that the word
review for interpretation of sentencing guideline).
"is" probably should be included.
2

felony under § 2L1.2.4 Although this is an is-
Congress has the power to define the
sue of first impression in this circuit, five other
punishment for the crime of reentering
circuits have addressed it and agree that under
the country after deportation . . . . Our
§ 2L1.2, a misdemeanor can be an "aggravated
decision would be much simpler if
felony," even though it is not a felony at all.5
Congress had used the term "aggravated
Finding their reasoning persuasive, we adopt it
offense." However, rather than making
as well.
the underlying offense conform to the
label Congress erroneously used to de-
Title 8 U.S.C. 1101(a)(43)(F) defines "ag-
scribe section 1101(a)(43) as amended,
gravated felony" as "a crime of violence . . .
we give effect to the definition of the
for which the term of imprisonment [is] at least
underlying offense and ignore the label.
one year." "Under the plain language of this
definition, there is no requirement that the of-
Graham, 169 F.3d at 792-93.
fense actually have been a felony, as that term
is conventionally understood." Wireko, 211
Whatever the wisdom of Congress's
F.3d at 835. In defining "aggravated felony,"
decision to alter the historic one-year line
Congress was defining a term of art, one that
between a misdemeanor and a felony, the
includes all violent crimes punishable by one
statute is unambiguous in its sweep.6 The
year's imprisonment, including certain violent
judgment of sentence, accordingly, is
misdemeanors. Graham, 169 F.3d at 792.
AFFIRMED.
Though Urias-Escobar is correct that
federal law traditionally defines a felony as a
crime punishable by over one year's
imprisonment, see 18 U.S.C. § 3559(a);
U.S.S.G. 2L1.2, cmt. 1, the plain language of
this statute says otherwise:
4 Urias does not contest that his conviction was
for a "violent" offense as required by statute. He
also concedes that although his one-year sentence
was suspended, it still fulfills the one-year
requirement.
5 Guerrero-Perez v. INS, 242 F.3d 727 (7th
Cir. 2001), aff'd on reh'g, 256 F.3d 546 (7th Cir.
2001); United States v. Christopher, 239 F.3d
1191 (11th Cir.), cert. denied, 122 S. Ct. 178
(2001); United States v. Pacheco, 225 F.3d 148
(2d Cir. 2000), cert. denied, 121 S. Ct. 2246
(2001); Wireko v. Reno, 211 F.3d 833 (4th Cir.
6 Finding no ambiguity in the statute, we have
2000); United States v. Graham, 169 F.3d 787 (3d
no occasion to address Urias-Escobar's rule of len-
Cir. 1999).
ity argument.
3