* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould 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 su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### April 14, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-2280

v. (D. of N.M.)CENOBIO ALFONSO RODRIGUEZROJO, Defendant-Appellant. (D.C. No. CR-05-1036-LH)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, HARTZ , and TYMKOVICH , Circuit Judges. **

Defendant-Appellant Cenobio Rodriguez-Rojo pled gui lty to Illegal Reentry in violation of 8 U.S.C. § 1326. At sentencing, th e court increased the applicable range under the United States Sentencing Guidelines based on a prior conviction.-2-

Rodriguez-Rojo argues that the enhancement was impr oper because the conviction was not for an “aggravated felony.” We AFFIRM. I. Background Rodriguez-Rojo, a citizen of Mexico, lived in El Pa so, Texas with a woman named Araceli Barrera, with whom he had three child ren. In 1997 he pushed Barrera in the back with his hand and was criminall y charged in El Paso County with assault. Rodriguez-Rojo pled guilty and was s entenced 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 sente nce be suspended and that the Defendant be, and is hereby placed on Community Sup ervision in this case for a period of 1 yr.” (Vol. I, Doc. 15, Ex. A.) Rodrig uez-Rojo was subsequently deported. In 2003, Rodriguez-Rojo returned without permissionto the United States to care for his children, who had been abandoned byBarrera and were living with Rodriguez-Rojo’s sister in New Mexico. He was char ged 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 g uideline range, the court increased the range by eight levels based on its co nclusion that the Texas conviction was an “aggravated felony.” See USSG § 2L1.2(b)(1)(C). Under the-3-

Guidelines, the offense level was 17, and his crimi nal 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 distr ict court erred in enhancing the guideline calculation based on a prio r “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 g uideline range is presumptively reasonable, we first “determine whether the distric t court considered the applicable Guidelines range, reviewing its legal co nclusions de novo and its factual findings for clear error.” Id. at 1055. Rodriguez-Rojo first argues that his Texas convicti on 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 misdeme anor). However, “an offense classified by state law as a misdemeanor can be an ‘aggravated felony’ triggering a sentencing enhancement under § 2L1.2 i f the offense otherwise conforms to the federal definition of ‘aggravated f elony’ 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 (9th1 He does not dispute that the Texas offense was a c rime of violence. -4- Cir. 2002); see also USSG § 2L1.2 n.3(A). Under that statute, an aggrav ated felony includes “a crime of violence . . . for whic h the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). Thu s, the fact that the crime was a misdemeanor under Texas law does not end the discus sion. 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 plac ed under community supervision. 1 “To determine whether a prior conviction involvedat least a one-year prison sentence, this court looks to the a ctual 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. ChavezValenzuela , 170 F.3d 1038, 1040 (10th Cir. 1999). Here, it is undisputed that the Texas court sentenc ed Rodriguez-Rojo to “1 yr confinement in the El Paso County Jail.” The fa ct 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 c ommunity supervision, since the actual sentence, before the suspension, was forone year of confinement. Because this unaggravated misdemeanor offense was p unished with one year, it2 Rodriguez-Rojo also argues that he was not sentenc ed 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 jai l confinement and prison confinement, and we reject his claim. -5- satisfies the time requirement for “aggravated felo nies” under federal immigration law, 2 so there was no guideline calculation error. We recently said, “If . . . the district court prop erly considers the relevant Guidelines range and sentences the defendant withinthat 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 th at 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