USA vs. Garces-Garcia, (5th Cir. 1999)

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined th a t this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40784 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GILBERTO GARCES-GARCIA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. M-98-CR-53-1 October 7, 1999 Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM: * Gilberto Garces-G arcia was convicted in district court of illegally re-entering the United States, in violation of 8 U.S.C. § 1326(a) and (b). He argues that the district court erred in imposing a 16-level enhancement under U.S.S.G. § 2L 1.2(b)(1)(A), based on his having committed an § 1101(A)(43)(F).

This court recently rejected an argumentsimilar to one raised by Garcesthat a statutory definition of § 1101(a)(48)(B), which does embrace suspended prison terms, does not apply to § 1101(a)(43)(F). S ee United States v. Banda-Zamora , 178 F.3 d 728, 730 (5th Cir. 1999).

Accordingly, the district court properly considered Garces§ 2L1.2(b)(1)(A).

Garces has not shown error, plain or otherwise, as to his contention that the definition of § 1101(a)(43)(F) is unconstituti onally vague. U nited States v. Calverley , 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc); see , e.g. , Banda-Zamora , 178 F.3d at 729-30.

A F F I R M E D.

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