Revised February 18, 2003

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

02-50211

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

OSVALDO COMPIAN-TORRES

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

January 29, 2003

Before JOLLY, DUHÉ, and WIENER, Circuit Judges.

DUHÉ, Circuit Judge:

Defendant Osvaldo Compian-Torres pleaded guilty to illegal

reentry after having been deported after a felony drug trafficking

conviction. His appeal challenges a 16-level increase in his base

of fense level prompted by the district court’s finding that his

prior felony conviction was a drug-trafficking offense “for which

the se ntence imposed exceeded 13 months.” U.S. Sentencing

Guidelines Manual § 2L1.2(b)(1)(A)(i).

The district court considered as part of the sentence on the

prior felony a term of imprisonment imposed upon revocation of

probation. Because such a term of imprisonment is indeed part of2

the punishment for the prior felony conviction, we hold that the

district court properly counted such prison term in determining the

length of the “sentence imposed” on the prior conviction. Finding

the increase in Defendant’s base offense level to have been

correctly applied, we affirm.

I.

Defendant was sentenced in 1994 for possession of a controlled

substance to ten years’ probation, and for delivery of a controlled

substance to ten years’ imprisonment, probated for ten years.

P.S.R. at 6 & Supp. R. His probation was revoked in 2000, and he

was sentenced to two years’ imprisonment for the delivery offense.

Guide line § 2L1.2(b)(1)(A) provides that, if the defendant had a

prior conviction “for a felony that is (i) a drug trafficking

offense for which the sentence imposed exce eded 13 months . . .

increase by 16 levels.” The Guideline’s Commentary instructs, “If

all or any part of a sentence of imprisonment was probated,

suspended, deferred, or stayed, ‘sentence imposed’ refers only to

the portion that was not probated, suspended, deferred, or stayed.”

U .S. Sentencing Guidelines Manual § 2L1.2, cmt. n.1(A)(iv). The

question is whether the two years imposed on revocation are counted

under the Guideline and Commentary.

II.

Defendant misses the mark by arguing that the probation

revocation “does not make this Commentary inapplicable.” The

Commentary applies to probated sentences, not probation

revocations. (That the ten-year probated sentences were properly1 Defendant notes that after the imposition of the two-year

revocation sentence, he was released after less than ten months.

Defendant suggests that the record is not clear wheth er this

release was the result of a suspension of the two-year sentence,

and that a remand may be necessary to clarify whether to count only

ten months rather than two years. We do not find a remand

warranted. The P.S.R. notes simply that defendant was “released &

deported.” S ee United States v. Jimenez, 258 F.3d 1120, 1125 (9th

Cir. 2001), cert. denied

, 534 U.S. 1151, 122 S. Ct. 1 115, 151 L.

Ed. 2d 1009 ( 2002) (considering entire two-year term of

imprisonment imposed upon revocation of probation, although

defendant s erved only thirteen months). Nowhere does the record

suggest that the release was subject to any suspension, probation,

or other condition excepted under the Commentary.

3 omitted from consideration is not disputed; only the two-year term

imposed at revocation is at issue.) A sentence imposed on

revocation is actually “imposed” as described in the Guideline and

not “probated” as excepted in the Commentary. 1

Compian-Torres also argues that a court should consider only

the sentence initially pronounced by the court, regardless of

subsequent developments. An interpretation of "sentence imposed"

as "senten ce originally imposed" is untenable. Since Defendant

actually had two sentencing hearings, the term of imprisonment at

the second hearing was part of the “sentence imposed.” C f. United

States v. Gra cia-Cantu , 302 F.3d 308, 310-11 (5th Cir. 2002)

(counting prison term imposed at probation revocation in

determining whether an offense had a term of imprisonment of at

least one year for § 2L1.2’s aggravated felony enhancement).

Compian-Torres also argues for a view of the revocation

sentence as not actually “imposed for” the prior felony but rather

imposed for a new offense or separate conduct, namely, the failure

to comply with court-ordered conditions of probation. While we4

app ly federal law to determine whether a sentence constitutes a

term of imprisonment, we may examine state law for informational

purposes and to aid our analysis of the effect of a state court’s

sentence. U nited States v. Landeros-Arreola

, 260 F .3d 407, 410

(5th Cir. 2001).

Upon Defendant’s violation of p robation, he was assessed a

prison term for the same offense con duct for which he had first

been given leniency. Under both federal and state law a sentence

imposed upon revocation of probation is treated as a sentence on

the original underlying offense. Such a sentence is not considered

a sanction fo r the new conduct which constituted a probation

violation. S ee U.S. Sentencing Guidelines Manual, Ch. 7, Pt. A,

3(b) & Pt. B, Introductory Commentary (noting that sanction imposed

upon revocation is to be served consecutively to any sentence for

the new criminal conduct that is the basis of the revocation and

that punishment for new criminal conduct is left to the court

responsible for imposing that sentence).

The Texas Code of Criminal Procedure and case law treat a

p robation revocation similarly. S ee Tex. Crim. Proc. Code Ann.,

art. 42.02 (Vernon Supp. 2003) (defining “sentence” as “that part

of the judgment, or order revoking a suspension of the imposition

of a sentence

, that orders that the punishment be carried into

execution”) (emphasis added); id. art. 42.12 § 23(a)(Vernon Supp.

2003)(allowing judge at revocation to proceed as if there had been

no community supervision or to reduce the term originally assessed

to a shorter term); Ex parte Weaver

, 880 S.W.2d 855, 857 (Tex. App.2 We find no inconsistency between our conclusion and U nited

States v. Arnold

, 213 F.3d 894 (5th Cir. 2000), urged by Defendant

at the argument of this appeal. Arnold concluded that a sentence

is “imposed” when pronounced by the court, which is upon adjudication of guilt, not when incarceration begins, as at a later

revocation. I d. at 895-96 (considering for purposes of criminal

history under Guideline § 4A1.2(e)(2) whether to count probation

revocation as a prior sentence “imposed within ten years”).

Implicit in Arnold is a recognition that a revocation sentence is

“imposed” on the original offense conduct.

5 – Fort Worth 1994, pet. ref’d) (“In a probation revocation hearing,

the State is seeking to impose the punishment originally assessed

for the offense for which the probated sentence was given, not the

offense which violated the probation condition.”).

Those state law principles are consistent with our reading of

the Guideline and Commentary as well as the view under federal

jurisprudence. S ee United States v. Hidalgo-Macias

, 300 F.3d 281,

285 (2nd Cir. 2002) (holding that prison term following revocation

of probation is modification and part of the actual s entence

imposed for original offense); U nited States v. Woods

, 127 F.3d

990, 992 (11th Cir. 1997) (considering revocation of probation to

be mo dification of terms of original sentence); U nited States v.

Brown

, 59 F.3d 102, 104 (9th Cir. 1995) (regarding revocation to be

reinstatement of sentence for underlying crime, not punishment for

conduct leading to revocation); United States v. Vogel

, 54 F.3d 49,

50 (2nd Cir. 1995) (holding that sentence at probation revocation

is imposed on the original conviction, not on a separate offense). 2

III.

The plain language of the Guideline and Comment would require

the court to disregard the probated sentence (the ten-year terms),6

and not to disregard the two years imposed upon revocation of

probation. Since this is precisely what the district court did, we

discern no error. Both federal law and Texas law support the

principle that the revocation sentence was imposed for the original

drug trafficking felony and not for the conduct deviating from

conditions of probation. Because the two-year sentence imposed on

the prior drug tr afficking offense exceeded 13 months, this case

fits squarely within the Guideline.

AFFIRMED. 1