           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 13, 2009
                                     No. 08-40588
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

OSCAR NAUN ROBELO-MOLINA

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:07-CR-1153


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Oscar Naun Robelo-Molina (Robelo-Molina) appeals the sentence of
57 months imposed following his plea of guilty to one count of being unlawfully
present in the United States following conviction of a felony and deportation, a
violation of 8 U.S.C. § 1326. Finding no error, we affirm.
       Robelo-Molina first contends that the sentence was procedurally
unreasonable because the district court selected a sentence based on clearly
erroneous facts, which then affected the weight given to his criminal history.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-40588

Due to the dismissal of his criminal prosecutions by the Massachusetts state
court, Robelo-Molina argues that he did not have a “conviction” for purposes of
increasing his offense level under U.S.S.G. § 2L1.2. Although Robelo-Molina
argues that the district court erred in its factual findings, he does not challenge
the factual matters set forth in the Government’s exhibits submitted to the
district court.   Thus, Robelo-Molina’s challenge lies with district court’s
characterization of the two Massachusetts prosecutions and hence its application
or interpretation of the relevant Guidelines. This is a question of law that we
review de novo. United States v. Valdez-Valdez, 143 F.3d 196, 197-98 (5th
Cir.1998); United States v. Griffith, 522 F.3d 607, 611 (5th Cir. 2008)
       Federal law, not state law, applies to the issue of statutory interpretation
and, thus, “we are not constrained by a state’s treatment of a felony conviction
when we apply the federal sentence-enhancement provisions.” Valdez-Valdez,
143 F.3d at 200 (internal quotations omitted). In Valdez-Valdez, the Court
examined Texas’s deferred adjudication scheme and determined that a
defendant’s deferred adjudication under that scheme constituted a “conviction”
for the purposes of § 2L1.2. Id. at 198-201. We find no material difference
between that case and Robelo-Molina’s case. Id.; see also De Vega v. Gonzales,
503 F.3d 45, 48-50 (1st Cir. 2007). Robelo-Molina’s admission to sufficient facts
and continuance without a finding of guilt (“CWOF”) under Mass. Gen. Law ch.
278, § 18 constitutes a “conviction” for sentencing enhancement purposes under
§ 2L1.2, notwithstanding the treatment of such procedure under Massachusetts
law.
       Likewise, Robelo-Molina’s procedural challenge to the district court’s
assessment of criminal history points based upon his prior Massachusetts
prosecutions for threat to commit a crime and assault with a dangerous weapon
is without merit. In United States v. Giraldo-Lara, 919 F.2d 19 (5th Cir. 1990),
the Court concluded that a Texas “deferred adjudication probation” could
properly be counted as a “prior sentence” under the Guidelines.           Id. at 23

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                                   No. 08-40588

(applying § 4A1.2(f)). Moreover, when considering the same issue presented
here, the First Circuit held that a Massachusetts court’s CWOF was a
“diversionary disposition” under § 4A1.2(f) and was properly counted as a “prior
sentence” pursuant to § 4A1.1. United States v. Morillo, 178 F.3d 18, 20-21 (1st
Cir. 1999). Robelo-Molina has not shown that the district court committed any
procedural error.
      Robelo-M olina     next    argues       that his sentence was substantively
unreasonable.       He contends that the guidelines range of imprisonment
overpunished him and yielded a sentence greater than necessary to achieve
§ 3553(a)’s purposes.      Robelo-Molina also challenges the presumption of
reasonableness that this court may apply, asserting that § 2L1.2 is flawed and
not entitled to deference because, like the Guideline at issue in Kimbrough v.
United States, 128 S. Ct. 558, 574-75 (2007), it was not based on empirical data
or adopted under the usual Sentencing Commission procedures.
      Although Robelo-Molina generally argued for a sentence below the
guidelines range based on his mental health and other factors, he did not
contend that the sentencing regime created by our precedent was unduly
restrictive, nor did he raise his policy challenge to § 2L1.2. Accordingly, we
review   those   arguments       for   plain    error.    See   United   States   v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Given our dispositions
of   similar   arguments    in   Campos-Maldonado         and   United   States   v.
Gomez-Herrera, 523 F.3d 554 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008), we
conclude that Robelo-Molina has failed to demonstrate any reversible plain
error. To the extent that Robelo-Molina may have preserved a substantive
reasonableness challenge to his sentence based on his particular circumstances,
he has failed to overcome the presumption of reasonableness that we afford the
district court’s sentence. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).
      The judgment of the district court is AFFIRMED.

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