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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

March 21, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

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
2

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
3

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. GarciaZamudio’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.