United States v. Rene Romero , 477 F. App'x 120 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5010
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RENE SALVADOR ROMERO,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00423-WO-1)
Argued: April 2, 2012 Decided: April 24, 2012
Before SHEDD and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Lynn McClellan, IVEY, MCCLELLAN, GATTON &
TALCOTT, LLP, Greensboro, North Carolina, for Appellant. Ripley
Eagles Rand, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Michael F. Joseph,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rene Salvador Romero, a native and citizen of El Salvador,
was convicted of illegally reentering the United States. See 8
U.S.C. § 1326(a). He now appeals his 43-month sentence. We
affirm.
In calculating Romero’s advisory guideline range, the
district court applied a 12-level enhancement to his base
offense level under U.S.S.G. § 2L1.2(b)(1)(B). This section
directs the court to add 12 levels to the base offense level if
the defendant was deported, or unlawfully remained in the United
States, “after a conviction for a felony drug trafficking
offense.” For purposes of § 2L1.2, a “felony” is “any federal,
state, or local offense punishable by imprisonment for a term
exceeding one year.” U.S.S.G. § 2L1.2 cmt. n2. Romero contends
that the enhancement is inapplicable to him because the
predicate conviction – his 1999 Texas state-court conviction for
delivery by constructive transfer of less than one gram of
cocaine – is not a felony under § 2L1.2(b)(1)(B). We review this
matter de novo. United States v. Diaz-Ibarra, 522 F.3d 343, 347
(4th Cir. 2008).
The State of Texas classifies Romero’s predicate conviction
as a “state jail felony.” See Tex. Health & Safety Code
§ 481.112(b). “State jail felonies were created . . . to relieve
the pressures of prison overcrowding in Texas,” and the state
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jail felony law “constituted both a realistic response to prison
overcrowding and an attempt to preserve the legislature’s
judgment that state jail felonies were indeed still felonies in
substance.” United States v. Caicedo-Cuero, 312 F.3d 697, 704-05
(5th Cir. 2002). Categorized as “the lowest quantum of
punishment of all Texas felonies,” United States v. Calderon-
Pena, 383 F.3d 254, 261 n.11 (5th Cir. 2004) (en banc), state
jail felonies are punishable by a sentence of imprisonment of
between 180 days and two years, see Tex. Penal Code § 12.35(a).
However, two alternative statutory provisions permit a
sentencing court to dispose of state jail felonies in a more
lenient manner. First, a sentencing court may punish a state
jail felony “by imposing the confinement permissible as
punishment for a Class A misdemeanor if . . . the court finds
that such punishment would best serve the ends of justice.” Tex.
Penal Code § 12.44(a). Punishment for a Class A misdemeanor
includes “confinement in jail for a term not to exceed one
year.” Tex. Penal Code § 12.21. Second, upon request of the
prosecuting attorney, a sentencing court “may authorize the
prosecuting attorney to prosecute a state jail felony as a Class
A misdemeanor.” Tex. Penal Code § 12.44(b). “Texas case law
indicates that a crime remains a felony even if punished as a
misdemeanor under § 12.44.” United States v. Rivera-Perez, 322
F.3d 350, 352 (5th Cir. 2003).
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In Romero’s case, the Texas court convicted him of a state
jail felony but then exercised its discretion under § 12.44(a)
and sentenced him as a Class A misdemeanant to 180 days
imprisonment. Relying on this fact, Romero argues that his prior
conviction is not a felony under § 2L1.2(b). We disagree.
Regardless of the ultimate sentence he received, Romero was in
fact convicted of a drug trafficking offense that was punishable
by a term exceeding one year. That conviction therefore
qualifies as a felony for purposes of § 2L1.2(b), and the
district court did not err in applying the enhancement in
calculating Romero’s offense level. See, e.g., Rivera-Perez, 322
F.3d at 352 (holding that a conviction for a Texas state jail
felony that exposed the defendant to a sentence of more than one
year is a “felony” for purposes of § 2L1.2(b) regardless of
whether the defendant was sentenced under § 12.44); United
States v. Nava-Zamora, 195 Fed. App’x 801, 803 (10th Cir. 2006)
(same). *
Based on the foregoing, we affirm Romero’s sentence.
AFFIRMED
*
We have considered Romero’s other arguments relating to his
sentence and find them to be without merit.
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