     Case: 13-40126      Document: 00512542927         Page: 1    Date Filed: 02/25/2014




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


                                      No. 13-40126                                FILED
                                                                           February 25, 2014
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                 Plaintiff–Appellee,
v.

JUAN CARLOS REALZOLA–RAMIREZ,

                                                 Defendant–Appellant,



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1278-1


Before JONES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Juan Carlos Realzola–Ramirez pleaded guilty to illegal reentry, and he
was sentenced to thirty months in prison.              On appeal, Realzola–Ramirez
challenges his sentence and objects to the twelve-level enhancement and the
criminal history point calculation that the district court used in determining
his sentence. Specifically, he argues that his modified sentence replaced his
original sentence and the nearly one year of imprisonment he served should be




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-40126
disregarded. Because the district court correctly calculated the Guidelines, we
AFFIRM.
      Realzola–Ramirez is a citizen of Mexico.        When he was sixteen, he
entered the United States and moved to Oklahoma. In 2007, while living in
Oklahoma, Realzola–Ramirez was convicted of possession of more than twenty
grams of methamphetamine with intent to distribute (“2007 Conviction”). For
this conviction, Realzola–Ramirez was sentenced to eight years in custody. He
served 341 days in custody. On July 2, 2008, Realzola–Ramirez received a
judicial review under Oklahoma Statute Annotated title 22, § 982a, which
provided that a trial court could modify a sentence for a twelve-month period
after its imposition. At that review, the Oklahoma court modified his sentence
“from 8 yrs to do to 8 yr suspended sentence all conditions of probation apply.”
A Supplemental Order of the Oklahoma court was issued, which stated that
the date of sentence was “7/2/08 (modification)” and the type of sentence is “8
yrs s/s” and set forth the conditions of his probation. Realzola–Ramirez was
released from Oklahoma’s custody to federal immigration authorities and
deported to Mexico on July 10, 2008. The record on appeal does not contain an
amended judgment and sentence for the 2007 Conviction.
      On July 18, 2012, Border Patrol agents found Realzola–Ramirez near
Hidalgo, Texas. He did not have permission to lawfully return to the United
States. On September 26, 2012, Realzola–Ramirez pleaded guilty to illegal
reentry in violation of 8 U.S.C. § 1326(a) and (b).
      The revised PSR assessed that Realzola–Ramirez’s offense level should
be enhanced by twelve levels pursuant to U.S.S.G. § 2L1.2(b)(1)(B), based on
the 2007 Conviction for which he was previously deported after a drug
trafficking conviction that was awarded criminal history points and for which
he served fewer than thirteen months imprisonment. With a base offense level
of eight and a twelve-level enhancement, minus two levels for acceptance of
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                                  No. 13-40126
responsibility, the final offense level was eighteen.         The criminal history
category was III.
      At the sentencing hearing, Realzola–Ramirez’s counsel objected to the
twelve-level enhancement and the assessment of two criminal history points
for the 2007 Conviction, arguing that the eight-year sentence was suspended,
so there was “no term of imprisonment that was actually ordered; [the modified
sentence] didn’t say with credit for time served.” His counsel argued that an
eight-level enhancement and one criminal history point was proper.              The
district court overruled the objection, stating that even though the sentence
was suspended, it did include the slightly less than one-year term of
imprisonment. The government moved for the additional acceptance point
under U.S.S.G. § 3E1.1(b), lowering the offense level to seventeen. Based on
this calculation, the Guidelines range was thirty to thirty-seven months. The
district court sentenced Realzola–Ramirez to thirty months of imprisonment.
                                          I.
      This court “review[s] the district court’s application of the sentencing
guidelines de novo.” United States v. Arviso–Mata, 442 F.3d 382, 384 (5th Cir.
2006). Our previous cases indicate that while we “examine[ ] [state law] for
informational purposes, we are not constrained by a state’s ‘treatment of a
felony conviction when we apply                the federal-sentence enhancement
provisions.’” United States v. Vasquez–Balandran, 76 F.3d 648, 649 (5th Cir.
1996) (quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988)). Thus,
state law aids our analysis of the effect of the state court’s sentence, but federal
law determines whether the sentence constitutes a term of imprisonment for
purposes of the aggravated felony enhancement. Furthermore, Guidelines
commentaries are given controlling weight provided that they are not plainly
erroneous or inconsistent with the Guidelines. United States v. Flores–Gallo,
625 F.3d 819, 821 (5th Cir. 2010).
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                                      No. 13-40126
      Though Realzola–Ramirez asks the court to review two issues—a twelve-
level enhancement to the offense level and the assessment of two criminal
history points for a prior conviction—both issues turn on whether his modified
sentence replaces the original sentence in that prior conviction.                     Section
2L1.2(b)(1)(B) of the Sentencing Guidelines provides that an individual
convicted under § 1326 should receive a twelve-level sentencing enhancement
if he has a prior conviction for a felony drug trafficking offense for which the
“sentence imposed” was thirteen months or less if the conviction receives
criminal history points. Realzola–Ramirez argues that the district court erred
in imposing a twelve-level enhancement because his sentence of imprisonment
had been modified to a fully suspended sentence pursuant to Oklahoma
Statute Annotated title 22, § 982a(A) (West 2007). 1 In essence, he asks us to
disregard the nearly one year imprisonment he served. In support of his
position, Realzola–Ramirez relies on two cases: United States v. Landeros–
Arreola, 260 F.3d 407 (5th Cir. 2001), and United States v. Rodriguez–Parra,
581 F.3d 227 (5th Cir. 2009). However, both cases can be distinguished from
the case before us.
      The issue in Landeros–Arreola was whether a prior conviction
constituted an “aggravated felony,” i.e., whether the term of imprisonment at



      1 The Oklahoma law in effect at this time was Oklahoma Statute Annotated title 22,
§ 982a(A) (West 2007) states:

      Any time within twelve (12) months after a sentence is imposed or within
      twelve (12) months after probation has been revoked, the court imposing
      sentence or revocation of probation may modify such sentence or revocation by
      directing that another penalty be imposed, if the court is satisfied that the best
      interests of the public will not be jeopardized. This section shall not apply to
      convicted felons who have been in confinement in any state prison system for
      any previous felony conviction during the ten-year period preceding the date
      that the sentence this section applies to was imposed. Further, without the
      consent of the district attorney, this section shall not apply to sentences
      imposed pursuant to a plea agreement.
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                                 No. 13-40126
issue was for at least one year, under 8 U.S.C. § 1101(a)(43)(F), which would
qualify for an enhancement pursuant to § 2L1.2(b)(1)(A), where the defendant
had originally been sentenced to four years of imprisonment but had his term
reduced to less than one year. The Colorado law at issue there was Colorado
Rule of Criminal Procedure 35(b), which provided that the court may reduce a
sentence if a motion for such reduction was filed within a certain period of time
or even on the court’s own initiative. Landeros–Arreola, 260 F.3d at 411 n.5.
Landeros–Arreola had served only eight months of a four-year sentence of
imprisonment when the state court released him after the completion of a state
military boot camp (Colorado’s Regimented Inmate Training Program). Id. at
409.     The Fifth Circuit determined that Landeros–Arreola’s sentence was
reduced from imprisonment to probation rather than a suspension of his
sentence, noting that the Colorado court could not have legally reduced
Landeros–Arreola’s sentence to probation and suspended his term of
imprisonment at the same time. Id. at 412. Because the enhancement did not
apply “when a defendant is directly sentenced to probation, with no mention of
suspension of a term of imprisonment,” and nothing in the record suggested
that the court below had suspended his term of imprisonment, this court
concluded that Landeros–Arreola’s prior Colorado conviction for felony
menacing did not qualify as an aggravated felony. Id. at 413 (quoting United
States v. Banda–Zamora, 178 F.3d 728, 730 (5th Cir. 1999)).
        Despite these distinctions, Realzola–Ramirez argues that like in
Landeros–Arreola, his modified sentence represents the actual disposition of
the case. This is an overstatement of our holding in Landeros–Arreola because
we did not reach the conclusion that the modified sentence replaced the
original sentence, only that the modified sentence was a probation rather than
a suspension of the remainder of a sentence. In fact, Landeros–Arreola never
argued that his eight months of incarceration was not relevant. Instead, he
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                                 No. 13-40126
argued that the eight months he served was insufficient to meet the definition
of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which required a term
of imprisonment of at least one year. Landeros–Arreola, 260 F.3d at 415
(Kazen, J., dissenting).   In this case, Realzola–Ramirez asks the court to
disregard the time he served in prison because it was not a part of the modified
sentence and he claims he received no credit for it. However, we cannot
disregard the time served because nothing in the record indicates that we
should do so.
      Rodriguez–Parra, 581 F.3d 227, is even more easily distinguished from
this case because the defendant in that case did not serve any of his sentence
before it was suspended. We concluded in Rodriguez–Parra, that because all
of the sentence was suspended and the defendant had not served any of the
sentence in prison, the defendant did not have a sentence of imprisonment
thirteen months or less for purposes of a twelve-level enhancement under
§ 2L1.2(b)(1)(B). Our holding in Rodriguez–Parra supports the conclusion that
Realzola–Ramirez’s one year served cannot be disregarded.            There, we
explained that § 2L1.2’s application note states that “‘[s]entence imposed’” has
the meaning given the term ‘sentence of imprisonment’ in Application Note 2
and subsection (b) of § 4A1.2.”    Rodriguez–Parra, 581 F.3d at 229 (citing
U.S.S.G. § 2L1.2 Application Note 1(B)(vii)). The commentary to § 4A1.2
provides that to “qualify as a sentence of imprisonment, the defendant must
have actually served a period of imprisonment on such sentence.” U.S.S.G.
§ 4A1.2, Application Note 2. Based on plain reading, it appears that the time
served qualifies as “sentence imposed.”      No one disputes that Realzola–
Ramirez actually served nearly one year of his sentence, thus the time served
cannot be disregarded for Guidelines purposes. Accordingly, we AFFIRM.




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