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This order is not binding precedent, except under the doctrines of law of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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