United States v. Canoa-Corrales , 294 F. App'x 165 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2008
No. 07-41207
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARICELA CANOA-CORRALES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:07-CR-30-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Maricela Canoa-Corrales appeals her 18-month sentence following her
guilty plea to illegal reentry following deportation. The district court applied an
eight level enhancement to Canoa-Corrales’s offense level pursuant to U.S.
Sentencing Guidelines Manual § 2L1.2(b)(1)(C) because she had a prior theft
conviction. Canoa-Corrales argues that this prior conviction is not an
aggravated felony under § 2L1.2(b)(1)(C) because her sentence was suspended
except for 108 days of time served.
*
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should not be published and is not precedent except under the limited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.
No. 07-41207
The definition of “aggravated felony” adopted by the Guidelines from 8
U.S.C. § 1101(a)(43), as interpreted in United States v. Banda-Zamora, 178 F.3d
728, 730 (5th Cir. 1999), applies, and the calculation considers the period of
incarceration without regard to any suspension of the sentence, in whole or in
part. See Banda-Zamora, 178 F.3d at 730; § 2L1.2(b)(1)(C) cmt. n.3. The fact
that Canoa-Corrales’s sentence for theft was suspended except for 108 days does
not change the fact that it meets the definition of an aggravated felony in §
1101(a)(43). Thus, the district court did not err in applying the § 2L1.2(b)(1)(C)
enhancement. See United States v. Armendariz, 451 F.3d 352, 357 (5th Cir.
2006).
AFFIRMED.
2