Dеfendant-appellant, an undocumented alien, was convicted of Unlawful Entry of a Previously Deported Alien, in violation оf 8 U.S.C. § 1326. Section 2L1.2(b)(l) of the Sentencing Guidelines requires that aliens convicted of illegally re-entering the United States receive а four level enhancement from the base offense level if the defendant was previously deported after being convicted of a felony. The defendant-appellant had a pri- or conviction under Colorado state law. The district сourt determined that federal law should control in classifying a prior conviction under state law rather than the classificаtion applied by the state statute. We affirm the district court and hold that in classifying a prior state conviction under § 2L1.2, a felоny is defined by reference to the maximum penalty authorized for the offense by the state statute of conviction.
I.
Defendant-appellant, Ruben Diaz-Bonilla, is a citizen of the Republic of Mexico. On September 29, 1992, he was deported from the United States at the Port of Entry at Laredo, Texas. On March 17, 1994, he was arrested in Washakie County, Wyoming, when he appeared before the county court in connection with a probation violation stemming from a previous Washakie County conviction for driving while under the influence of alcohol. Diaz-Bonilla subsequently admitted to a border patrol agent that he had illegally re-entered the United States at El Paso, Texas, on October 1, 1992.
This was not Diaz-Bonilla’s first encounter with authorities. The record indicates that he has been formally deported from the United States on five occasions and has been allowed to voluntarily dеport on six other occasions. Each time he has illegally returned to the United States. In May 1980, Diaz-Bonilla pled guilty in Denver District Court to the crime of Third Degree Assault. He was sentenced to two years with one year suspended. He served his sentence and was deported to Mexico in 1980. The Colorado statute defines Third Degree Assault as a misdemeanor. The maximum penalty for the offense is up to two years in the county jail.
On March 23, 1994, in the district court below, a one count indictment was returned against Diаz-Bonilla charging him with the § 1326(a) violation. He pled guilty at arraignment. Diaz-Bonilla filed objections to the presentenee reрort. His objections addressed the probation officer’s recommendation that Diaz-Bonilla’s base offense level bе enhanced four levels by construing the prior Colorado conviction as a felony offense. He argued that the § 2L1.2(b)(l) four оffense level was not applicable when the conviction *877 relied upon for enhancement was defined as a misdemeanor under state law and not “a conviction for a felony,” as required in § 2L1.2(b)(l). After denying the objection, the district court sentеnced Diaz-Bonilla to 24 months incarceration.
II.
The parties disagree as to whether Diaz-Bonilla’s sentence was prоperly enhanced by four levels pursuant to § 2L1.2(b)(l) of the Guidelines which provide: “If the defendant previously was deported aftеr a conviction for a felony, other than a felony involving violation of the immigration laws, increase by 4 levels.”
Diaz-Bonilla argues that, in determining whether a defendant has a former felony conviction, the offense classification applied by the state statute of conviction should control. Diaz-Bonilla was formerly convicted under Colorado state law of a Clаss 1 Misdemeanor, and was sentenced to the two year statutory maximum term of imprisonment for that offense. Government argues that for purposes of uniformity in application of the Guidelines, the term “a conviction for a felony” in § 2L1.2(b)(l) should be defined by reference to federal law. The district court agreed with the government and applied the four level enhancement tо Diaz-Bonilia’s base offense level.
III.
The district court’s factual findings are reviewed for clear error. Its interpretation of a provision in the Sentencing Guidelines is subject to de novo review.
United States v. Wilson,
The Sentencing Reform Act of 1984 was enacted to aсhieve greater uniformity in the sentencing of federal crimes.
United States v. Garcia,
A federal criminal law is not generally construed so thаt its application is dependent on state law.
Dickerson v. New Banner Institute, Inc.,
In the Guidelines, a “felony offense” is defined in § 4A1.2(o) as “any federal, state, or locаl offense punishable by death or a term of imprisonment exceeding one year, regardless of the sentence impоsed.” In joining the Ninth Circuit, we hold that for purposes of § 2L1.2, a felony conviction is defined as a conviction under a statute, state or federal, with a statutory maximum penalty in excess of one year.
See, United States v. Olvera-Cervantes,
“Were we to do so, however, the uniformity in sentencing that the Guidelines was intеnded to ensure would be jeopardized. Criminals with similar records might receive vastly different sentences simply because their past crimes were defined differently by different states. We believe that uniformity in sentencing may best be achieved by applying the Guidеlines without strict reference to state criminal law definitions.”
Id. at 121.
IV.
In summary, we find that the district court properly applied a four lеvel enhancement to Diaz-Bonilla’s base offense level under *878 § 2L1.2(b)(l), in defining “a conviction for a felony” by application of federal law.
AFFIRMED.