                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT            May 18, 2007
                       ______________________
                             No. 06-50520            Charles R. Fulbruge III
                                                             Clerk
                       ______________________

                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,
                                 versus

MARTIN ANTHONY CASTELLON, also known as Martin A. Castellon,

                                            Defendant-Appellant.
          ________________________________________________

   On Appeal from the United States District Court for the
                  Western District of Texas,
                    No. 3:05-cr-02188-KC-2
       ________________________________________________


Before REAVLEY, GARZA, and DENNIS, Circuit Judges.


PER CURIAM:*

      Defendant Martin Anthony Castellon pleaded guilty to a

four-count drug indictment, and the district court sentenced

him to concurrent sentences of 46 months in prison and four

years of supervised release on each count.                Castellon now

appeals his sentence, claiming that the district court should

not   have    considered   a   prior   Texas   deferred    adjudication



      *
      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this opinion should not be published and is not precedent except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.

                                   1
proceeding for the purpose of enhancing his sentence.                  We

AFFIRM.

                                     I.

     On   October   5,   2005,   a       federal   grand   jury   indicted

Castellon and a co-defendant on four counts:               (1) conspiracy

to import marijuana, in violation of 21 U.S.C. §§ 963, 952(a),

and 960(a)(1); (2) importation of marijuana, in violation of

21 U.S.C. §§ 952(a) and 960(a)(1); (3) conspiracy to possess

with the intent to distribute marijuana, in violation of 21

U.S.C. §§ 846 and 841(a)(1); and (4) possession with the intent

to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1).

The government also filed a bill of information, pursuant to

21 U.S.C. § 851,1 notifying Castellon that it intended to seek

enhanced punishment based on a prior Texas state conviction for

possession of more than 5, but              less than 50, pounds of

marijuana in December 2004.

     Castellon objected to the notice of enhanced punishment.

He asserted that, because the Texas prosecution resulted in the

     1
       21 U.S.C. § 851 provides, in pertinent part: “No person who
stands convicted of an offense under this part shall be sentenced
to increased punishment by reason of one or more prior convictions,
unless before trial, or before entry of a plea of guilty, the
United States attorney files an information with the court (and
serves a copy of such information on the person or counsel for the
person) stating in writing the previous convictions to be relied
upon. . . .” 21 U.S.C. § 851(a)(1).

                                     2
imposition of deferred adjudication probation, it was not a

“final” conviction and could not be used to enhance his

sentence under the enhancement provisions of 21 U.S.C. §

841(b). See id. § 841(b)(1)(D) (providing enhanced punishments

for convictions involving less than 50 kilograms of marijuana

if the offense occurs “after a prior conviction for a felony

drug offense has become final”). After a hearing, the district

court overruled Castellon’s objection.

    On January 11, 2006, Castellon pleaded guilty, without a

plea agreement, to all four counts of the indictment.                Before

Castellon was sentenced, the probation officer prepared a

presentence investigation report.             In its calculation of the

relevant advisory sentencing guidelines range, the presentence

investigation report attributed a total of three criminal

history   points   to   Castellon   based       on   the   Texas   deferred

adjudication conviction (one point for the sentence itself, and

two points because the current offense was committed while

Castellon   was    on   probation       for    the   Texas   conviction).

Castellon objected to the presentence investigation report’s

criminal history calculation, again asserting that the Texas

deferred adjudication was not a “final” conviction and could

not therefore be considered.            The district court overruled


                                    3
Castellon’s objection and sentenced him to 46 months in prison

on each count, the sentences to be served concurrently.        The

district court also imposed concurrent four-year terms of

supervised release on each count.    The sentence imposed by the

district court was at the bottom of the advisory guidelines

range calculated by the presentence investigation report.

                               II.

     As an initial matter, it is not altogether clear whether

Castellon appeals only the use of his Texas conviction as a

trigger to the enhanced penalties available under 21 U.S.C. §

841(b)(1)(D),2 or whether he also appeals the use of the Texas

conviction in calculating his criminal history category under

the advisory sentencing guidelines.      The argument heading in

Castellon’s brief suggests the former, but Castellon appears


     2
        The presentence investigation report indicated that
Castellon was subject to enhanced penalties not only under 21
U.S.C. § 841(b)(1)(D) (for counts three and four), but also under
21 U.S.C. § 960(b)(4) (for counts one and two). Although Castellon
does not raise the issue, we note that section 960(b)(4) does not
provide for sentence enhancement on the basis of a prior felony
drug conviction.     This error need not detain us, however.
Castellon’s sentence on counts one and two was less than the
maximum sentence permitted under section 960(b)(4). Moreover, the
only effect that the presentence investigation report’s error had
on the calculation of the appropriate advisory guidelines range for
counts one and two was to increase the minimum term of supervised
release to four years. Because Castellon was properly sentenced to
concurrent four-year terms of supervised release on counts three
and four, however, any error did not prejudice Castellon or affect
his substantial rights.

                                4
to raise both arguments in the text of his brief. For the sake

of completeness, we consider both.

     Castellon does not dispute that, under binding precedents

of this court, questions about the effect that a prior state

conviction is to be given for federal sentencing purposes,

whether   under   the   advisory   sentencing   guidelines   or   the

sentence enhancement provisions of 21 U.S.C. § 841, is a

question of federal law.      See United States v. Vasquez, 298

F.3d 354, 358 (5th Cir. 2002) (21 U.S.C. § 841); United States

v. Valdez-Valdez, 143 F.3d 196, 200 (5th Cir. 1998) (U.S.S.G.

§§ 4A1.1 & 2).    Nor does Castellon dispute that this court has

previously held that a Texas deferred adjudication can be

considered a prior sentence or prior conviction under both the

sentencing guidelines and section 841.      See Vasquez, 298 F.3d

at 358-60; Valdez-Valdez, 143 F.3d at 201-02.

     Rather, Castellon argues only that the district court’s

decision to permit his 2004 Texas deferred adjudication to be

used to enhance his sentence violates the Full Faith and Credit

Act, 28 U.S.C. § 1738,3 which provides that the judicial


     3
      In his brief, Castellon invokes the Full Faith and Credit
Clause of the Constitution. See U.S. Const. art IV, § 1. The Full
Faith and Credit Clause does not, however, bind federal courts.
See Univ. of Tenn. v. Elliot, 478 U.S. 788, 799 (1986); see also
Conn. Bank of Commerce v. Republic of Congo, 309 F.3d 240, 248 (5th

                                   5
proceedings of other states “shall have the same full faith and

credit within every court within the United States . . . as

they have by law or usage in the courts of such State,

Territory or Possession from which they are taken.”

     Although this court does not appear to have previously

addressed Castellon’s full faith and credit argument, the

argument is meritless. The Full Faith and Credit Act obligates

federal courts to give effect to the judgments of state courts,

but the principles that underlie the Full Faith and Credit Act

are simply not implicated when a federal court endeavors to

determine how a particular state criminal proceeding is to be

treated, as a matter of federal law, for the purpose of

sentencing the defendant for a distinct and unrelated federal

crime.   A number of other circuits have reached this same

conclusion, and we are aware of no decisions to the contrary.

See United States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005)

(“[T]he principles of federalism and comity embodied in the

full faith and credit statute are not endangered when a

sentencing court, not questioning the propriety of the state’s



Cir. 2002) (stating that Full Faith and Credit Act “extends to the
federal courts the requirements of the Full Faith and Credit Clause
of the Constitution, which applies of its own force only to state
courts”).

                                6
determination in any way, interprets how to apply New York’s

youthful offender adjudications to a Guidelines analysis.”)

(internal citation and quotation marks omitted); United States

v. Guthrie, 931 F.2d 564, 571 (9th Cir. 1991) (“[D]octrines

such as Full Faith and Credit, . . . and related jurisdictional

principles, are inapplicable . . . where the issue is the role

of prior state convictions in a federal sentencing scheme.”);

United States v. Carter, 186 F. App’x 844, 847 (10th Cir. 2006)

(unpublished) (“It does not accord a state judgment less than

full faith and credit for a federal court to determine its

effect on a subsequent federal sentence under federal law.”).

Accordingly, we reject Castellon’s argument that the Full Faith

and Credit Act prohibited the district court from considering

his Texas deferred adjudication for sentencing purposes.

                              CONCLUSION

    For     the   reasons   stated   above,   we   AFFIRM   Castellon’s

sentence.

                                                             AFFIRMED.




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