*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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 United States Court of Appeals Fifth Circuit 

### FILED May 18, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________ No. 06-50520

______________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARTIN ANTHONY CASTELLON, also known as Martin A. Castellon, Defendant-Appellant.

________________________________________________ On Appeal from the United States District Court for the

Western District of Texas, No. 3:05-cr-02188-KC-2

________________________________________________ Before REAVLEY, GARZA, and DENNIS, Circuit Judges.

PER CURIAM:* Defendant Martin Anthony Castellon pleaded guilty to a four-count drug indictment, and the district court sentenced him to concurrent sentences of 46 months in prison and four years of supervised release on each count. Castellon now appeals his sentence, claiming that the district court should not have considered a prior Texas deferred adjudication1 21 U.S.C. § 851 provides, in pertinent part: “No person who

stands convicted of an offense under this part shall be sentenced to increasedpunishment byreason of one ormore prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. . . .” 21 U.S.C. § 851(a)(1). 2 proceeding for the purpose of enhancing his sentence. We AFFIRM. I. On October 5, 2005, a federal grand jury indicted Castellon and a co-defendant on four counts: (1) conspiracy to import marijuana, in violation of 21 U.S.C. §§ 963, 952(a), and 960(a)(1); (2) importation of marijuana, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1); (3) conspiracy to possess with the intent to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1); and (4) possessionwith the intent todistributemarijuana, inviolationof 21 U.S.C. § 841(a)(1). The government also filed a bill of information, pursuant to 21 U.S.C. § 851,1 notifying Castellon that it intended to seek enhancedpunishment basedonapriorTexas state conviction for possession of more than 5, but less than 50, pounds of marijuana in December 2004. Castellon objected to the notice of enhanced punishment. He asserted that, because the Texas prosecutionresulted inthe3

imposition of deferred adjudication probation, it was not a “final” conviction and could not be used to enhance his sentence under the enhancement provisions of 21 U.S.C. § 841(b). See id. § 841(b)(1)(D) (providingenhancedpunishments for convictions involving less than 50 kilograms of marijuana if the offense occurs “after a prior conviction for a felony drug offense has become final”). After a hearing, the district court overruled Castellon’s objection. On January 11, 2006, Castellon pleaded guilty, without a plea agreement, to all four counts of the indictment. Before Castellon was sentenced, the probation officer prepared a presentence investigation report. In its calculation of the relevant advisory sentencing guidelines range, the presentence investigation report attributed a total of three criminal history points to Castellon based on the Texas deferred adjudicationconviction (onepoint for the sentence itself, and two points because the current offense was committed while Castellon was on probation for the Texas conviction). Castellon objected to the presentence investigation report’s criminal history calculation, again asserting that the Texas deferred adjudication was not a “final” conviction and could not therefore be considered. The district court overruled2 The presentence investigation report indicated that

Castellon was subject to enhanced penalties not only under 21 U.S.C. § 841(b)(1)(D) (for counts three and four), but also under 21 U.S.C. § 960(b)(4) (for counts one and two). Although Castellon does not raise the issue, we note that section 960(b)(4) does not provide for sentence enhancement on the basis of a prior felony drug conviction. This error need not detain us, however. Castellon’s sentence on counts one and two was less than the maximum sentence permitted under section 960(b)(4). Moreover, the only effect that the presentence investigation report’s error had on the calculation of the appropriate advisoryguidelines range for counts one and two was to increase the minimum term of supervised release to fouryears. Because Castellon was properly sentenced to concurrent four-year terms of supervised release on counts three and four, however, any error did not prejudice Castellon or affect his substantial rights. 4 Castellon’s objection and sentenced him to 46 months in prison

on each count, the sentences to be served concurrently. The district court also imposed concurrent four-year terms of supervised release on each count. The sentence imposed by the district court was at the bottom of the advisory guidelines range calculated by the presentence investigation report. II. As an initial matter, it is not altogether clear whether Castellon appeals only the use of his Texas conviction as a trigger to the enhanced penalties available under 21 U.S.C. § 841(b)(1)(D),2 or whether he also appeals the use of the Texas conviction in calculating his criminal history category under the advisory sentencing guidelines. The argument heading in Castellon’s brief suggests the former, but Castellon appears3In his brief, Castellon invokes the Full Faith and Credit

Clause of the Constitution. See U.S. Const. art IV, § 1. The Full Faith and Credit Clause does not, however, bind federal courts. See Univ. of Tenn. v. Elliot, 478 U.S. 788, 799 (1986); see also Conn. Bank of Commerce v. Republic of Congo, 309 F.3d 240, 248 (5th 5 to raise both arguments in the text of his brief. For the sake of completeness, we consider both. Castellon does not dispute that, under binding precedents of this court, questions about the effect that a prior state conviction is to be given for federal sentencing purposes, whether under the advisory sentencing guidelines or the sentence enhancement provisions of 21 U.S.C. § 841, is a question of federal law. See United States v. Vasquez, 298 F.3d 354, 358 (5th Cir. 2002) (21 U.S.C. § 841); United States v. Valdez-Valdez, 143 F.3d 196, 200 (5th Cir. 1998) (U.S.S.G. §§ 4A1.1 & 2). Nor does Castellon dispute that this court has previously held that a Texas deferred adjudication can be considered a prior sentence or prior conviction under both the sentencing guidelines and section 841. See Vasquez, 298 F.3d at 358-60; Valdez-Valdez, 143 F.3d at 201-02. Rather, Castellon argues only that the district court’s decision to permit his 2004 Texas deferred adjudication to be used to enhancehis sentenceviolates the Full Faithand Credit Act, 28 U.S.C. § 1738,3 which provides that the judicialCir. 2002) (stating that Full Faith and Credit Act “extends to the

federal courts the requirements of the Full Faith and Credit Clause of the Constitution, which applies of its own force only to state courts”). 6 proceedings of other states “shall have the same full faithand credit within every court within the United States . . . as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” Although this court does not appear to have previously addressed Castellon’s full faith and credit argument, the argument is meritless. The Full Faith and Credit Act obligates federal courts to give effect to the judgments of state courts, but the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal law, for the purpose of sentencing the defendant for a distinct and unrelated federal crime. A number of other circuits have reached this same conclusion, and we are aware of no decisions to the contrary. See United States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005) (“[T]he principles of federalism and comity embodied in the full faith and credit statute are not endangered when a sentencing court, not questioning the propriety of the state’s7

determination in any way, interprets how to apply New York’s youthful offender adjudications to a Guidelines analysis.”) (internal citation and quotationmarks omitted); United States v. Guthrie, 931 F.2d 564, 571 (9th Cir. 1991) (“[D]octrines suchas Full Faithand Credit, . . . and related jurisdictional principles, are inapplicable . . . where the issue is the role of prior state convictions in a federal sentencing scheme.”); United States v. Carter, 186 F. App’x 844, 847 (10thCir. 2006) (unpublished) (“It does not accord a state judgment less than full faith and credit for a federal court to determine its effect on a subsequent federal sentence under federal law.”). Accordingly, we reject Castellon’s argument that theFull Faith and Credit Act prohibited the district court from considering his Texas deferred adjudication for sentencing purposes. CONCLUSION For the reasons stated above, we AFFIRM Castellon’s sentence. AFFIRMED.