United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 21, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-50051
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SALVADOR GARCIA-ZAMUDIO,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Del Rio
USDC No. 2:04-CR-22-1
_________________________________________________________________
Before REAVLEY, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
Salvador Garcia-Zamudio (“Garcia-Zamudio”) appeals his
sentence, asserting that the district court erred in imposing a
twelve-level sentence enhancement pursuant to U.S.S.G. §
2L1.2(b)(1)(B) based on Garcia-Zamudio’s prior drug trafficking
offense.
In the mid-1990s, Garcia-Zamudio was charged with a violation
of the Georgia Controlled Substances Act. He pled guilty, and in
1995 was sentenced to four years of probation pursuant to Georgia’s
First Offender Act (“GFOA”). After successfully completing his
*
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this opinion should not be published and is not precedent except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.
probation, Garcia-Zamudio was “discharged without court
adjudication of guilt,” with the discharge stating that Garcia
“shall not be considered to have a criminal conviction.” Under
state law, when successful completion of the term of probation is
achieved, “the defendant shall be discharged without court
adjudication of guilt.” Ga. Code Ann. § 42-8-62. Further, “the
discharge shall completely exonerate the defendant of any criminal
purpose and shall not affect any of his or her civil rights or
liberties; and the defendant shall not be considered to have a
criminal conviction.” Id.
In 2003, Garcia-Zamudio entered the United States illegally,
and he was subsequently charged with unlawful entry. He pled
guilty to this charge. At sentencing, the district court increased
Garcia-Zamudio’s base offense level under the Sentencing Guidelines
by twelve levels pursuant to U.S.S.G. § 2L1.2(b)(1)(B), which
commands an increase when the defendant was deported after a prior
“conviction for a felony drug trafficking offense for which the
sentence imposed was 13 months or less.” Garcia-Zamudio objected
to this increase, arguing that his discharged Georgia offense did
not amount to a conviction, but the district court overruled the
objection. Garcia-Zamudio timely appeals the district court’s use
of his discharged offense to enhance his sentence.
Even after Booker, this Court reviews the district court’s
application of the Guidelines de novo and its findings of fact for
clear error. United States v. Villegas, 404 F.3d 355, 359 (5th
2
Cir. 2005); United States v. Creech, 408 F.3d 264, 270 n.2 (5th
Cir. 2005).
Due to the exoneration and discharge, Garcia-Zamudio argues
that he did not have a “conviction” for the purposes of increasing
his offense level under § 2L1.2. Federal law, not state law,
applies to the issue of statutory interpretation, thus “we are not
constrained by a state’s treatment of a felony conviction when we
apply the federal sentence-enhancement provisions.” United States
v. Valdez-Valdez, 143 F.3d 196, 200 (5th Cir. 1998) (internal
quotations omitted). In Valdez-Valdez, the Court examined Texas’s
deferred adjudication scheme and determined that a defendant’s
deferred adjudication under that scheme constituted a “conviction”
for the purposes of § 2L1.2. Id. at 198-201. We find no material
difference between that case and Garcia-Zamudio’s case. Garcia-
Zamudio’s “non-conviction” under the GFOA constitutes a
“conviction” for sentencing enhancement purposes under § 2L1.2,
notwithstanding the treatment of such “non-conviction” under
Georgia law.
Therefore, the sentence imposed by the district court is
AFFIRMED.
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