                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                             October 6, 2006
                                        TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                  No. 05-2110
                                                        (D. Ct. No. CR-05-368 JP)
 ADRIAN NAVA-ZAMORA,                                            (D. N. M.)

                Defendant - Appellant.



                               ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, KELLY, and MURPHY, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Defendant-Appellant Adrian Nava-Zamora pleaded guilty to illegally reentering

the country following deportation in violation of 8 U.S.C. § 1326(a)(1), (2). Based on a

prior state court conviction for drug trafficking, which the District Court treated as a




       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
felony, Mr. Nava-Zamora was sentenced to 27 months’ imprisonment. He appeals his

sentence arguing that his prior conviction was not a felony and that his sentence is

otherwise unreasonable. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

                                    I. BACKGROUND

       In February 2005 Mr. Nava-Zamora pleaded guilty to illegal reentry by a felon

following deportation. See 8 U.S.C. § 1326(a)(1), (2). The probation officer prepared a

pre-sentence report (“PSR”) setting Mr. Nava-Zamora’s base offense level at 8. See

United States Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) § 2L1.2(a).

The probation officer then applied a 12-level upward adjustment based upon Mr. Nava-

Zamora’s 1996 Texas conviction for unlawful delivery of a controlled substance, see

U.S.S.G. § 2L1.2(b)(1)(B), and a 3-level reduction based upon Mr. Nava-Zamora’s timely

acceptance of responsibility, see id. at § 3E1.1. This resulted in a total offense level of

17, which, when combined with Mr. Nava-Zamora’s criminal history category of II,

produced an advisory Guidelines range of 27 to 33 months’ imprisonment.

       Mr. Nava-Zamora filed objections to the PSR. Specifically, he argued that his

prior Texas conviction for drug trafficking was a misdemeanor, not a felony, and

therefore the 12-level enhancement provided for in U.S.S.G. § 2L1.2(b)(1)(B) does not

apply. He also argued that his criminal history category of II substantially overrepresents

the nature of his criminal history, see U.S.S.G. § 4A1.3(b)(1); his prior offense was

selling thirty dollars worth of crack cocaine to an undercover law enforcement officer for

which he served 180 days’ imprisonment. At the sentencing hearing, the District Court

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agreed with the Government and the probation officer that Mr. Nava-Zamora’s prior

conviction was a felony and that his criminal history category did not substantially

overrepresent the seriousness of his prior crime. The court also concluded that a sentence

within the Guidelines range was appropriate in this case, and sentenced Mr. Nava-Zamora

to serve 27 months. Mr. Nava-Zamora now appeals.

                                    II. DISCUSSION

       We review the district court’s interpretation and application of the Guidelines de

novo and its factual findings for clear error. United States v. Chavez-Diaz, 444 F.3d

1223, 1225 (10th Cir. 2006). We review the ultimate sentence imposed for

reasonableness. Id. at 1229.

       Guidelines § 2L1.2 governs a sentence for unlawfully reentering the United States

following deportation. It provides a base offense level of 8 and requires a sentencing

court to impose upward adjustments depending on the circumstances leading to the prior

deportation. Relevant to this case, § 2L1.2 requires a 12-level upward adjustment if the

defendant was previously convicted “for a felony drug trafficking offense for which the

sentence imposed was 13 months or less.” U.S.S.G. § 2L1.2(b)(1)(B). Mr. Nava-Zamora

argues that his Texas conviction for drug trafficking was not a felony. Mr. Nava-

Zamora’s contention is without merit.

       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. n.2. The judgment in the prior case

reveals that Mr. Nava-Zamora was convicted of a “state jail” felony, which is an offense

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punishable by a period of confinement “of not more than two years or less than 180

days.” TEX. PENAL CODE § 12.35(a). In other words, a state jail offense is an offense

punishable by a term of imprisonment exceeding one year. Although this fact would

appear to settle the matter, Mr. Nava-Zamora points to another portion of the judgment

that states the degree of his punishment is reduced to a “Class A misdemeanor,” which is

an offense punishable by imprisonment “not to exceed one year,” see id. § 12.21.

According to Mr. Nava-Zamora, he was therefore convicted of a misdemeanor.

      To the contrary, under Texas law:

      A court may punish a defendant who is convicted of a state jail felony by
      imposing the confinement permissible as punishment for a Class A
      misdemeanor if, after considering the gravity and circumstances of the
      felony committed and the history, character, and rehabilitative needs of the
      defendant, the court finds that such punishment would best serve the ends
      of justice.

Id. at § 12.44(a) (emphasis added). Nevertheless, “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) (citing Fite v. State, 60 S.W.3d 314, 320 (Tex. Ct. App. 2001);

Arriola v. State, 49 S.W.3d 374, 375–76 (Tex. Ct. App. 2000); Hadnot v. State, 851

S.W.2d 378, 379 (Tex. Ct. App. 1993)). Such is the case for Mr. Nava-Zamora and,

accordingly, we conclude that the District Court properly applied the 12-level

enhancement provided for in U.S.S.G. § 2L1.2(b)(1)(B).

      Mr. Nava-Zamora next contends that his 27-month sentence is unreasonably long.

We first note that sentences imposed within an accurately calculated Guidelines range are



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entitled to a rebuttable presumption of reasonableness. Chavez-Diaz, 444 F.3d at 1229.

“[A] defendant may rebut that presumption with a showing that the sentence is

unreasonable under the factors set out in 18 U.S.C. § 3553(a).” United States v. Paredes,

–F.3d–, 2006 WL 2411439, *3 (10th Cir. 2006). Mr. Nava-Zamora argues that his

sentence, which is at the bottom of the applicable Guidelines range, is unreasonable

because of the relative lack of seriousness of his prior offense and because there is no

evidence that he engaged in any illegal activity between 1996 and the instant offense.

Furthermore, he argues that he will be deported following any prison sentence so there is

no need to protect the public from possible future crimes by keeping him incarcerated.

The District Court considered these arguments as well as the fact that Mr. Nava-Zamora

had young children in Mexico who depended upon him for support. The court concluded

no “good basis [existed] for going outside the guideline range and using discretion

provided by Booker.” It is presumptively reasonable for the District Court to determine

that a sentence within the applicable Guidelines range sufficiently reflects the factors in

18 U.S.C. § 3553, and Mr. Nava-Zamora has not otherwise demonstrated his sentence is

unreasonable when viewed against these factors. As such, we conclude that his sentence

is reasonable.

                                   III. CONCLUSION

       For the foregoing reasons, we AFFIRM Mr. Nava-Zamora’s sentence.




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ENTERED FOR THE COURT,


Deanell Reece Tacha
Chief Circuit Judge




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