                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5010


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

     v.

RENE SALVADOR ROMERO,

                      Defendant – Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00423-WO-1)


Argued:   April 2, 2012                   Decided:   April 24, 2012


Before SHEDD and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert Lynn McClellan, IVEY, MCCLELLAN, GATTON &
TALCOTT, LLP, Greensboro, North Carolina, for Appellant. Ripley
Eagles Rand, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.     ON BRIEF: Michael F. Joseph,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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

       Rene Salvador Romero, a native and citizen of El Salvador,

was convicted of illegally reentering the United States. See 8

U.S.C.      § 1326(a).        He    now    appeals    his    43-month       sentence.      We

affirm.

       In     calculating          Romero’s    advisory      guideline       range,       the

district       court     applied      a    12-level      enhancement        to    his   base

offense       level     under      U.S.S.G.     § 2L1.2(b)(1)(B).           This    section

directs the court to add 12 levels to the base offense level if

the defendant was deported, or unlawfully remained in the United

States,       “after     a    conviction       for   a     felony    drug    trafficking

offense.” For purposes of § 2L1.2, 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. n2. Romero contends

that     the    enhancement          is    inapplicable       to    him     because       the

predicate conviction – his 1999 Texas state-court conviction for

delivery       by    constructive         transfer    of    less    than    one    gram    of

cocaine – is not a felony under § 2L1.2(b)(1)(B). We review this

matter de novo. United States v. Diaz-Ibarra, 522 F.3d 343, 347

(4th Cir. 2008).

       The State of Texas classifies Romero’s predicate conviction

as   a      “state     jail     felony.”      See    Tex.    Health    &     Safety     Code

§ 481.112(b). “State jail felonies were created . . . to relieve

the pressures of prison overcrowding in Texas,” and the state

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jail felony law “constituted both a realistic response to prison

overcrowding       and     an   attempt      to       preserve       the     legislature’s

judgment that state jail felonies were indeed still felonies in

substance.” United States v. Caicedo-Cuero, 312 F.3d 697, 704-05

(5th     Cir.     2002).    Categorized          as       “the     lowest        quantum    of

punishment of all Texas felonies,” United States v. Calderon-

Pena, 383 F.3d 254, 261 n.11 (5th Cir. 2004) (en banc), state

jail felonies are punishable by a sentence of imprisonment of

between 180 days and two years, see Tex. Penal Code § 12.35(a).

       However,     two    alternative       statutory           provisions        permit    a

sentencing court to dispose of state jail felonies in a more

lenient manner. First, a sentencing court may punish a state

jail     felony     “by    imposing       the      confinement             permissible      as

punishment for a Class A misdemeanor if . . . the court finds

that such punishment would best serve the ends of justice.” Tex.

Penal    Code     § 12.44(a).       Punishment        for    a     Class    A    misdemeanor

includes    “confinement        in    jail   for      a     term    not     to   exceed     one

year.”    Tex.    Penal    Code      § 12.21.     Second,        upon      request   of     the

prosecuting       attorney,     a    sentencing        court       “may     authorize      the

prosecuting attorney to prosecute a state jail felony as a Class

A   misdemeanor.”        Tex.   Penal    Code     § 12.44(b).           “Texas     case     law

indicates that 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).

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       In Romero’s case, the Texas court convicted him of a state

jail felony but then exercised its discretion under § 12.44(a)

and    sentenced              him   as    a     Class     A    misdemeanant       to   180     days

imprisonment. Relying on this fact, Romero argues that his prior

conviction           is       not   a    felony      under         § 2L1.2(b).    We   disagree.

Regardless of the ultimate sentence he received, Romero was in

fact convicted of a drug trafficking offense that was punishable

by     a    term         exceeding        one       year.      That      conviction    therefore

qualifies           as    a    felony     for       purposes        of   § 2L1.2(b),     and    the

district        court         did   not       err    in     applying      the    enhancement     in

calculating Romero’s offense level. See, e.g., Rivera-Perez, 322

F.3d at 352 (holding that a conviction for a Texas state jail

felony that exposed the defendant to a sentence of more than one

year       is   a     “felony”      for       purposes        of   § 2L1.2(b)     regardless     of

whether         the       defendant       was       sentenced        under   § 12.44);       United

States v. Nava-Zamora, 195 Fed. App’x 801, 803 (10th Cir. 2006)

(same). *

       Based on the foregoing, we affirm Romero’s sentence.

                                                                                         AFFIRMED




       *
      We have considered Romero’s other arguments relating to his
sentence and find them to be without merit.


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