                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4674


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

YOMAR MORAN-ROSARIO, a/k/a Yomar Rosario,            a/k/a   Antonio
Moran, a/k/a Eliezer Maldonado-Cabrera,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:10-cr-00221-DKC-1)


Submitted:   December 30, 2011            Decided:    February 16, 2012


Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard S. Basile, Greenbelt, Maryland, for Appellant.     Rod J.
Rosenstein, United States Attorney, Jonathan C. Su, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 Yomar       Moran-Rosario        pled          guilty     to    illegal   reentry

after deportation following conviction for an aggravated felony,

in    violation         of    8    U.S.C.       § 1326(a),             (b)(2)    (2006),   and     was

sentenced below the Guidelines range to a term of thirty months’

imprisonment.            Moran-Rosario appealed his sentence, contending

that   the       district         court       erred       in    making     a    16-level   increase

under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2010),

based on a prior drug conviction which had been vacated.                                            We

affirm.

                 The     district         court’s              legal     interpretation       of     a

Guideline is reviewed de novo.                        United States v. Montgomery, 262

F.3d 233, 250 (4th Cir. 2001).                        As he did in the district court,

Moran-Rosario relies on United States v. Mejia, 278 F. Supp. 2d

55    (D.   Mass.        2003).           In    Mejia,          the    defendant’s    prior      drug

conviction had been vacated for insufficient evidence.                                       Mejia,

278    F.       Supp.    2d       at    56.      The       Massachusetts          district    court

reasoned that such a vacated conviction could not support an

enhancement under § 2L1.2 without violating due process.                                     Id. at

62.    The court also noted that the commentary to USSG § 4A1.2

barred      a    conviction            ruled    invalid          for    constitutional      reasons

from being counted in the defendant’s criminal history or used

to increase his offense level for a firearms offense under USSG

§ 2K2.1.         Id. at 61.             The court decided that the commentary to

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§ 2L1.2   “suggest[ed]    the    same   approach.”       Id.     Further,       the

court   decided   that   the    relevant    time   period   is    the    time    of

sentencing for the illegal reentry offense, not the time of the

illegal reentry as urged by the government.             Id. at 57.

            However, Mejia is not helpful to Moran-Rosario and the

weight of circuit authority is contrary to his position.                  First,

the circuits that have addressed the issue have all held that,

where a prior conviction that qualifies for an enhancement under

§ 2L1.2(b)(1)(A) has been vacated or reduced to a non-qualifying

conviction, the relevant time for determining whether a prior

conviction    qualified    for    enhancement      is    the     date    of     the

defendant’s deportation rather than the date of his sentencing

for illegal reentry.       See United States v. Salazar-Mojica, 634

F.3d 1070, 1073-74 (9th Cir.) (felony reduced to misdemeanor),

cert. denied, 132 S. Ct. 348 (2011); United States v. Orduno-

Mireles, 405 F.3d 960, 962 & n.1 (11th Cir. 2005) (although

prior     conviction     vacated,       relevant     time      was      time     of

deportation); United States v. Garcia-Lopez, 375 F.3d 586, 588

(7th Cir. 2004) (same); United States v. Luna-Diaz, 222 F.3d 1,

4 (1st Cir. 2000) (same); United States v. Campbell, 167 F.3d

94, 98 (2d Cir. 1999) (conviction set aside when probation term

completed); United States v. Cisneros-Cabrera, 110 F.3d 746, 748

(10th Cir. 1997) (conviction vacated).              When Moran-Rosario was



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deported in 2008, he had the requisite qualifying felony drug

trafficking conviction.

              As the district court noted in Mejia, 278 F. Supp. 2d

at    62,   the    First     Circuit       in       Luna-Diaz   recognized        that   its

decision did not address “a prior conviction vacated as a result

of    constitutional           infirmity,           egregious   error    of       law,    or

determination of innocence,” and did not exclude the possibility

that a § 2L1.2(b) enhancement based on such a conviction “might

in some limited circumstances raise constitutional due process

concerns.”            222    F.3d     at   6        n.5.    Moran-Rosario         has    not

established that any of these factors is present in his case.

Thus, to the extent that he relies on Padilla v. Kentucky, 130

S. Ct. 1473 (2010) (holding that failure to advise defendant

that guilty plea would subject him to automatic deportation was

ineffective assistance), his claim is unsupported by the record,

which does not disclose the reason his conviction was vacated.

              Moreover, despite Mejia’s focus on the commentary to

§ 4A1.2     as    a    basis    for    barring         consideration    of    a    vacated

conviction under § 2L1.2(b), Cisneros-Cabrera held that § 2L1.2

does not import this limitation from § 4A1.2.                      Cisneros-Cabrera,

110    F.3d   at      748.      Although        Application     Note    1(B)(vii)        and

Application Note 4 to § 2L1.2 cross reference to § 4A1.2, they

do so only with respect to the meaning of “sentence imposed” and

“three or more convictions.”                   Thus, Moran-Rosario’s reliance on

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United    States     v.    Reinoso,      350    F.3d   51   (2d    Cir.    2003),    is

misplaced.       The Second Circuit was concerned in that case with

whether, under its precedent governing a state youthful offender

adjudication, United States v. Driskell, 277 F.3d 150 (2d Cir.

2002), the defendant’s adult New York armed robbery conviction

could be considered to calculate his offense level for illegal

reentry although the robbery conviction was vacated when he was

adjudicated      a   youthful      offender.     Reinoso     does    not    hold,   as

Moran-Rosario asserts, that there is in general no distinction

between the criminal history calculation and the offense level

calculation in applying the sentencing Guidelines.

               We conclude that, in light of these decisions, the

district court did not err in applying the enhancement based on

Moran-Rosario’s prior drug-trafficking conviction even though it

had been vacated. *        We therefore affirm the sentence imposed by

the district court.             We dispense with oral argument because the

facts    and    legal     contentions     are    adequately       presented    in   the

materials      before     the    court   and    argument     would    not     aid   the

decisional process.

                                                                              AFFIRMED

     *
       Guidelines section 2L1.2(b)(1)(A) was recently amended to
clarify this issue and now provides for a 12-level increase if a
prior qualifying conviction is not counted in the defendant’s
criminal history.     See Amendment 754, eff. Nov. 1. 2011.
Amendment 754 is not retroactive. See USSG § 1B1.10(c).



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