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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No.96-50546
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS HERRERA-SOLORZANO,
Defendant-Appellant.
(consolidated with)
_________________________________
96-50548
_________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RIGOBERTO ALTAMIRANO-LOPEZ,
also known as Ernesto Ochoa-Lopez,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
May 20, 1997
Before POLITZ, Chief Judge, DEMOSS, Circuit Judge, and JUSTICE,* District
*United States District Judge, Eastern Distict of Texas, sitting by designation.

Judge.
POLITZ, Chief Judge:
Jose Luis Herrera-Solorzano and Rigoberto Altamirano-Lopez appeal their
sentences following convictions for illegal reentry into the United States.2 Concluding
that the district court erred in sentencing Altamirano and in the imposition of special
assessments, we affirm in part and vacate and remand in part.
BACKGROUND
In separate prosecutions Herrera and Altamirano pleaded guilty to the charge of
illegal reentry into the United States. Each had been deported after burglary
convictions in Texas state court. The district court increased both of their offense
levels by 16 on a finding that their prior state court convictions qualified as aggravated
felonies.3 Herrera was sentenced to 51 months in prison and three years of supervised
release, and the court imposed a $100 special assessment. Altamirano was sentenced
to 70 months in prison and three years of supervised release, and the court imposed a
$100 special assessment. Both timely appealed. We consolidated the appeals for
purposes of appellate disposition.
ANALYSIS
1. Sentence Adjustment
Section 2L1.2 of the sentencing guidelines provides for an increase of 16 levels
for an illegal reentry conviction if the alien was convicted of an aggravated felony prior
28 U.S.C. § 1326.
3U.S.S.G. § 2L1.2.
2

to deportation. Herrera and Altamirano contend that because their state court felonies
were committed before the effective date of amendments expanding the definition of
aggravated felony, the district court erred in applying that definition to them. That
argument is foreclosed by our decision in United States v. Garcia-Rico4 in which we
held that the date of illegal reentry -- not the date of the underlying offense -- is the
relevant date for determining the definition of aggravated felony applicable for purposes
of sentence enhancement. Herrera and Altamirano illegally reentered the United States
after the effective date of the amendments and, therefore, the district court did not err
in employing the broader definition of aggravated felony.
Altamirano alternatively contends that his prior state court conviction does not
qualify as an aggravated felony because he was not sentenced to a term of
imprisonment. An aggravated felony includes a crime of violence for which the term
of imprisonment imposed -- regardless of any suspension of imprisonment -- is at least
five years.5 The Texas state court judgment states that Altamirano was to be:
punished by confinement . . . for TEN (10) YRS A/P [Adult Probation]
. . . . The imposition of the above sentence (and fine) is suspended and the
Defendant is placed on adult probation.
We have found an almost identical Texas state court judgment to satisfy the
aggravated felony requirement that the defendant be sentenced to a term of
446 F.3d 8 (5th Cir.), cert. denied, 115 S. Ct. 2596 (1995).
5U.S.S.G. § 2L1.2 commentary n. 7 (citing 8 U.S.C. § 1101(a)(43)). Section
1101(a)(43) has since been amended to define an aggravated felony as, inter alia,
a crime of violence for which the term of imprisonment is at least one year.
3

imprisonment of at least five years.6 Unlike the judgment in Vasquez-Balandran,
however, the judgment in the case at bar contains a reference to adult probation next
to the term of confinement, which suggests that the state court may have been directly
sentencing Altamirano to ten years of adult probation. That distinction carries
significance because if Altamirano was placed on probation without first being
sentenced to prison, his prior conviction does not constitute an aggravated felony.7
The district court, however, found that the state court conviction qualifies as an
aggravated felony. The burden is on the party seeking to adjust the sentence level to
prove "by a preponderance of the relevant and sufficiently reliable evidence the facts
necessary to support the adjustment."8 The sole evidence before the district court was
the state court judgment. That judgment standing alone is not sufficient to meet the
government's evidentiary burden. The state court judgment is inconsistent on its face.
Read literally it purports to sentence Altamirano to confinement by placing him on adult
probation for ten years. From the language of the sentence alone it is not possible to
discern with the required certainty whether the state court intended to assess a term of
imprisonment and suspend imposition thereof, or to place Altamirano directly on
probation. The district court erred in failing to put the government to its burden of
proving, by a preponderance of the evidence, that Altamirano indeed was sentenced to
6United States v. Vasquez-Balandran, 76 F.3d 648 (5th Cir. 1996).
7Id. at 650 ("Texas did (and still does) have a provision that allowed a defendant
to be placed on probation (now `community supervision') without first assessing a term
of imprisonment.") (citing Tex.Code Crim.P. art. 42.12 § 5(a)).
8United States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990).
4

a prison term of at least five years. Accordingly, we affirm Herrera's sentence but
vacate the sentence imposed on Altamirano and remand for resentencing consistent
herewith.
2. Special Assessments
When Herrera and Altamirano illegally reentered the country there was a $50
special assessment imposed by statute upon any person convicted of a felony. The
Antiterrorism and Effective Death Penalty Act,9 which was passed after both Herrera
and Altamirano made their illegal reentries, increased the special assessment for a
felony to $100.10 The government concedes that the district court incorrectly imposed
a $100 special assessment for offenses committed prior to the effective date of the
AEDPA. We therefore vacate the imposition of the $100 special assessments and
remand so that the district court may impose $50 special assessments on Herrera and
Altamirano.
AFFIRMED in part, VACATED AND REMANDED in part.
9Pub. L. No. 104-132, 110 Stat. 1214 (1996).
1018 U.S.C. § 3013(a)(2)(A).
5