IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50619
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AGUSTIN RIVERA-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CR-50-ALL-EP
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February 12, 2003
Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Agustin Rivera-Perez appeals the sentence imposed after he
pleaded guilty to one count of illegally reentering the United
States after having been convicted of a felony and deported.
Rivera contends that his sentence deprived him of due
process of law because the indictment did not allege the prior
conviction, which he contends is an element of the offense.
Rivera concedes that this claim is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he
seeks only to preserve the issue for Supreme Court review in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi
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did not overrule Almendarez-Torres. See United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202
(2001). This argument provides no basis for relief.
Rivera contends that his sentence must be vacated because
his prior conviction did not warrant a 16-level increase in the
offense level. The offense level for illegal reentry after
deportation is increased by 16 levels “[i]f the defendant
previously was deported, or unlawfully remained in the United
States after – a conviction for a felony that is . . .a crime of
violence[.]” U.S.S.G. § 2L1.2(b)(1)(A) (Nov. 2001). Rivera’s
conviction for attempted indecency with a minor by exposure
constitutes a “crime of violence.” See United States v. Zavala-
Sustaita, 214 F.3d 601, 607 (5th Cir. 2000); United States v.
Rayo-Valdez, 302 F.3d 314, 316 (5th Cir. 2002). Rivera argues,
however, that the attempted-indecency conviction was not a
“felony” crime of violence because, according to his plea
agreement and TEX. PENAL CODE § 12.44, he was subject to no more
than one year in prison.
The applicable guideline comment defines “felony” as “any
federal, state, or local offense punishable by imprisonment for a
term exceeding one year.” U.S.S.G. § 2L1.2, comment.
(n.1(B)(iv)). Attempted indecency with a minor by exposure is a
Texas state jail felony punishable by a maximum sentence of two
years. See TEX. PENAL CODE §§ 21.11, 15.01(d), 12.04(4)&(5),
12.35(a). However, Rivera’s plea bargain provided that his case
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would be handled in accordance with TEX. PENAL CODE § 12.44, which
allows punishment as if the crime were a Class A misdemeanor with
a one-year maximum sentence, and Rivera was sentenced to 90 days.
See TEX. PENAL CODE §§ 12.44(a), 12.21(2).
We may look to Texas law to provide guidance as to the
proper characterization of the prior crime. See United States v.
Vasquez-Balandran, 76 F.3d 648, 650 (5th Cir. 1996). Texas case
law indicates that a crime remains a felony even if punished as a
misdemeanor under § 12.44. See Fite v. State, 60 S.W.3d 314, 320
(Tex. Ct. App. 2001) (conviction, not actual punishment under
§ 12.44, determines nature of offense; enhancement barred on
other grounds); Arriola v. State, 49 S.W.3d 374, 375-76 (Tex. Ct.
App. 2000) (prior felony conviction treated as felony for
enhancement purposes even though punished as misdemeanor under
§ 12.44(a)); Hadnot v. State, 851 S.W.2d 378, 379 (Tex. Ct. App.
1993) (same). The plain language of § 12.44 indicates that the
crime remains “the felony committed” even though the defendant
may be punished as if for a misdemeanor. TEX. PENAL CODE
§ 12.44(a). In addition, Rivera’s plea-bargain states, with
emphasis, that, although Rivera was being punished as for a
misdemeanor, the judgment “shall constitute A FINAL FELONY
CONVICTION FOR DEFENDANT.”
In our recent case, United States v. Caicedo-Cuero, 312 F.3d
697 (5th Cir. 2002), the defendant’s offense level was increased
where he had previously pleaded guilty to Texas state-jail felony
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of marijuana possession. Caicedo-Cuero, 312 F.3d at 699. At the
time of the prior offense, Texas law provided a maximum sentence
of two years but mandated that first-offenders should get
suspended sentences and probation. Id. (citations omitted). We
rejected the defendant’s contention that the mandatory suspension
and probation removed his prior crime from a definition of
“felony” punishable by imprisonment for more than one year. Id.
at 703-05. We concluded that the prior conviction was a “felony”
because Texas law characterized it as such and because the
statute “provided for a maximum term of imprisonment of two
years,” regardless of the fact that the defendant was not
sentenced to more than one year. Id. at 705-06; see also United
States v. Arellano-Torres, 303 F.3d 1173, 1178-79 (9th Cir.
2002), cited in Caicedo-Cuero. The mandatory suspension of
sentence in Caicedo-Cuero did not change the fact that, absent
circumstances peculiar to the particular defendant, the crime was
“punishable” by more than a year’s imprisonment.
We apply the essential reasoning of Caicedo-Cuero to the
present case and hold that a crime is a “felony” for purposes of
U.S.S.G. § 2L1.2(b)(1) and commentary note 1(B)(iv) if, by the
terms of the criminal statute, a conviction exposes a defendant
to a sentence of imprisonment of more than one year, regardless
whether the defendant is sentenced under TEXAS PENAL CODE § 12.44.
The judgment of the district court is AFFIRMED.