UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel GONZALEZ-TAMARIZ, Defendant-Appellant, 310 F.3d 1168

WARDLAW, Circuit Judge. Miguel Angel Gonzalez Tamariz appeals his sentence of 67 months imprisonment for unlawful reentry into the United States following deportation and an “aggravated felony” conviction, in violation of 8 U.S.C. § 1326(a). He challenges the classification of his prior Nevada conviction as an aggravated felony warranting a 16-level sentencing enhancement because Nevada state law classifies the conviction as a gross misdemeanor for which one year is the maximum sentence.

Because Gonzalez’s offense of battery causing substantial bodily harm meets the federal definition of an aggravated felony regardless of its state law label and because the federal statute plainly provides that a crime of violence is an aggravated felony when the term of imprisonment is at least one year, the district court did not err in applying the 16-level enhancement. Gonzalez’s third, Apprendi-based, claim is foreclosed by our decision in Echavarria-Escobar. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Echavarria-Escobar, 270 F.3d 1265, 1271 (9th Cir.2001).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. I. BACKGROUND Gonzalez does not here challenge his prior conviction for battery under Nevada state law. He argues instead that his sentence for unlawful re-entry after deportation should not have been increased by 16 levels because his prior offense was not an “aggravated felony.” Gonzalez also argues that the conviction cannot be considered for sentencing purposes because it was nnt mpnftnnpri in fhp inrHctmprrh Gonzalez, a citizen of Mexico, pled guilty to unlawful re-entry after deportation under 8 U.S.C. § 1326(

a) in July 2000. The sentencing guidelines provide that the sentence imposed for this offense be increased by 16 levels if the defendant has a prior aggravated felony conviction. U.S.S.G. § 2L1.2(b)(1)(A). In 1995 Gonzalez was convicted of battery causing substantial bodily harm, which was classified as a gross misdemean or under Nevada state law. Nev.Rev.Stat. 200.481. He was given a suspended one-year sentence.

At the sentencing hearing for the offense of unlawful re-entry after deportation in 2000, the district court decided that Gonzalez’s prior conviction for battery constituted an aggravated felony under the sentencing guidelines and imposed a 16-level sentencing enhancement. II. AGGRAVATED FELONY Gonzalez contends that his previous conviction is not an “aggravated felony” for purposes of the Sentencing Guidelines because i)'Nevada state law classified his offense as a “gross misdemeanor” rather than an “aggravated felony” and ii) his one-year sentence does not meet the minimum requirement for an aggravated felony.

We review whether the aggravated felony provisions of the Sentencing Guidelines apply to a conviction de novo. United States v. Yanez-Saucedo, 295 F.3d 991, 993 (9th Cir.2002). A. MISDEMEANOR AS AGGRAVATED FELONY Gonzalez argues that because his prior conviction for battery was considered a “gross misdemeanor” under Nevada state law, it cannot constitute a “felony” for sentencing purposes. We disagree.

In Coronar-Sanchez we explained that “a crime may be classified as an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43) without regard to whether, under state law, the crime is labeled a felony or a misdemean- or.... The relevant question is whether the crime meets the definition of an ‘aggravated felony’ under federal sentencing law.” United States v. Corona-Sanchez, 291 F.3d 1201, 1210 (9th Cir.2002) (en banc); see also United States v. Arellano-Torres, 303 F.3d 1173, 1179 n. 5 (9th Cir.2002). The eight other circuits that have addressed this issue reached the same conclusion. See, e.g., United States v.

Pacheco, 225 F.3d 148, 149 (2d Cir.2000); see also United States v. Marin Navarette, 244 F.3d 1284, 1286-87 (11th Cir.2001). We agree with the Tenth and Third Circuits “that Congress was defining a term of art, ‘aggravated felony,’ which ... includes certain misdemeanants who receive a sentence of one year.” United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir.2002) (quoting United States v. Graham, 169 F.3d 787, 792 (3d Cir.1999)).

The Fifth Circuit stated similarly “[w]hat-ever the wisdom of Congress’s decision to alter the historic one-year line between a misdemeanor and a felony, the statute is unambiguous in its sweep.” United States v. Urias-Escobar, 281 F.3d 165, 168 (5th Cir.2002), cert. denied, — U.S. -, 122 S.Ct. 2377, 153 L.Ed.2d 196 (2002). An offense classified as a misdemeanor under state law may therefore be considered an aggravated felony for sentencing purposes if it meets the requirements of 8 U.S.C. § 1101(a)(43). B.

ONE YEAR SENTENCE REQUIREMENT Gonzalez also contends that the 16-level enhancement only applies to “crimes of violence” that result in a sentence of more than one year. We reject Gonzalez’s argument that the definition of “crime of violence” provided by the commentary to U.S.S.G. § 2L1.2 limits its application to those crimes which result in a sentence “exceeding one year” because that portion of the Sentencing Guidelines does not apply to Gonzalez. The 16-level sentencing enhancement Gonzalez received was based on his conviction for an aggravated felony. U.S.S.G. § 2L1.2(b)(1)(A).

The Application Notes to this portion of the Sentencing Guidelines point to 8 U.S.C. § 1101(a)(43) for the definition of “aggravated felony,” which reads “a crime of violence ... for which the term of imprisonment is at least one year.” Gonzalez’s conviction fulfills these requirements. Since Gonzalez committed an “aggravated felony” for purposes of the Sentencing Guidelines, and not a misdemeanor “crime of violence,” the language that applies to his conviction is “at least one year,” 8 U.S.C. § 1101(a)(43)(

f) and not “exceeding one year,” U.S.S.G. § 4B1.2. We have interpreted the clause “at least one year” to include those crimes that receive a sentence of exactly one year. In Matsuk v. INS we held that an assault conviction carrying a 365-day sentence meets the statutory definition of an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). Matsuk v. INS, 247 F.3d 999, 1001-02 (9th Cir.2001); see also Yanez-Saucedo, 295 F.3d at 996 n. 6. III.

APPRENDI CLAIM Finally, we reject Gonzalez’s claim that under Apprendi, his prior conviction must be charged in the indictment because it is an element of the offense of unlawful re-entry after deportation. The general rule of Apprendi, that all elements of a crime must be charged in an indictment, does not apply to prior convictions used only for sentencing purposes. See Echavarria-Escobar, 270 F.3d at 1271; see also United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

The district court did not err in considering Gonzalez’s prior conviction during sentencing. IV. CONCLUSION Because an offense classified as a misdemeanor under state law can be considered an aggravated felony under federal law if it is a crime of violence with a sentence of at least one year, and because Echavarria-Escobar forecloses Gonzalez’s Apprendi argument, the decision of the district court is AFFIRMED.