                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          April 14, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-2280
          v.                                            (D. of N.M.)
 CENOBIO ALFONSO RODRIGUEZ-                     (D.C. No. CR-05-1036-LH)
 ROJO,

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, HARTZ , and TYMKOVICH , Circuit Judges.            **




      Defendant-Appellant Cenobio Rodriguez-Rojo pled guilty to Illegal Reentry

in violation of 8 U.S.C. § 1326. At sentencing, the court increased the applicable

range under the United States Sentencing Guidelines based on a prior conviction.




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Rodriguez-Rojo argues that the enhancement was improper because the conviction

was not for an “aggravated felony.” We AFFIRM.

                                   I. Background

      Rodriguez-Rojo, a citizen of Mexico, lived in El Paso, Texas with a woman

named Araceli Barrera, with whom he had three children. In 1997 he pushed

Barrera in the back with his hand and was criminally charged in El Paso County

with assault. Rodriguez-Rojo pled guilty and was sentenced to “1 yr confinement

in the El Paso County Jail.” (Vol. I, Doc. 15, Ex. A.) However, at the same time,

the court ordered “that the imposition of the sentence be suspended and that the

Defendant be, and is hereby placed on Community Supervision in this case for a

period of 1 yr.” (Vol. I, Doc. 15, Ex. A.) Rodriguez-Rojo was subsequently

deported.

      In 2003, Rodriguez-Rojo returned without permission to the United States

to care for his children, who had been abandoned by Barrera and were living with

Rodriguez-Rojo’s sister in New Mexico. He was charged with Illegal Reentry

pursuant to 8 U.S.C. § 1326 and pled guilty to this offense. At sentencing, the

court calculated the applicable guideline range and considered the factors set

forth in 18 U.S.C. § 3553(a). In calculating the guideline range, the court

increased the range by eight levels based on its conclusion that the Texas

conviction was an “aggravated felony.”   See USSG § 2L1.2(b)(1)(C). Under the


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Guidelines, the offense level was 17, and his criminal history category was IV,

yielding a range of 24 to 30 months in prison. The court imposed a 24-month

sentence.

                                       II. Analysis

       Rodriguez-Rojo raises several reasons why the district court erred in

enhancing the guideline calculation based on a prior “aggravated felony” under

USSG § 2L1.2(b)(1)(C). Since         United States v. Booker , 543 U.S. 220 (2005), we

review sentences for reasonableness.       United States v. Kristl , 437 F.3d 1050, 1053

(10th Cir. 2006). Although a sentence within the guideline range is presumptively

reasonable, we first “determine whether the district court considered the

applicable Guidelines range, reviewing its legal conclusions de novo and its

factual findings for clear error.”    Id. at 1055.

       Rodriguez-Rojo first argues that his Texas conviction cannot be an

aggravated felony because it was a misdemeanor under Texas law.          See Tex. Penal

Code Ann. § 22.01 (making assault a Class A misdemeanor). However, “an

offense classified by state law as a misdemeanor can be an ‘aggravated felony’

triggering a sentencing enhancement under § 2L1.2 if the offense otherwise

conforms to the federal definition of ‘aggravated felony’ found in 8 U.S.C.

§ 1101(a)(43).”    United States v. Saenz-Mendoza     , 287 F.3d 1011, 1014 n.5 (10th

Cir. 2002) (quoting    United States v. Robles-Rodriguez   , 281 F.3d 900, 903 (9th


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Cir. 2002); see also USSG § 2L1.2 n.3(A). Under that statute, an aggravated

felony includes “a crime of violence . . . for which the term of imprisonment [is]

at least one year.” 8 U.S.C. § 1101(a)(43)(F). Thus, the fact that the crime was a

misdemeanor under Texas law does not end the discussion.

      Rodriguez-Rojo next argues that the crime was not an aggravated felony

because the term of imprisonment was not “at least one year” because the

sentence was suspended, and he was immediately placed under community

supervision.   1
                   “To determine whether a prior conviction involved at least a

one-year prison sentence, this court looks to the actual sentence imposed.”

United States v. Gonzalez-Coronado       , 419 F.3d 1090, 1093 (10th Cir. 2005). In

doing so, we also take into account any portion of the sentence that was

suspended. 8 U.S.C. § 1101(a)(48)(B);       see also United States v. Chavez-

Valenzuela , 170 F.3d 1038, 1040 (10th Cir. 1999).

      Here, it is undisputed that the Texas court sentenced Rodriguez-Rojo to “1

yr confinement in the El Paso County Jail.” The fact that the court immediately

suspended that entire term does not matter under § 1101(a). Nor does it matter

that Rodriguez-Rojo was effectively “probated” to community supervision, since

the actual sentence, before the suspension, was for one year of confinement.

Because this unaggravated misdemeanor offense was punished with one year, it


      1
          He does not dispute that the Texas offense was a crime of violence.

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satisfies the time requirement for “aggravated felonies” under federal immigration

law, 2 so there was no guideline calculation error.

      We recently said, “If . . . the district court properly considers the relevant

Guidelines range and sentences the defendant within that range, the sentence is

presumptively reasonable.”   Kristl , 437 F.3d at 1055. Here, the district court did

not err in its guideline calculation and imposed a sentence within the applicable

range. Rodriguez-Rojo cites no § 3553(a) factor that would compel a

nonguideline sentence, so we conclude the sentence in this case was reasonable.

                                  III. Conclusion

      For these reasons, we AFFIRM.

                                               Entered for the court

                                               Timothy M. Tymkovich
                                               Circuit Judge




      2
        Rodriguez-Rojo also argues that he was not sentenced to a “term of
imprisonment” since the confinement was to be in a county jail, not a prison. He
cites no authority for distinguishing between a jail confinement and prison
confinement, and we reject his claim.

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