UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5010

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

RENE SALVADOR ROMERO,

 Defendant – Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:09-cr-00423-WO-1)

Argued: April 2, 2012 Decided: April 24, 2012

Before SHEDD and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Robert Lynn McClellan, IVEY, MCCLELLAN, GATTON & 

TALCOTT, LLP, Greensboro, North Carolina, for Appellant. Ripley 

Eagles Rand, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, 

North Carolina, for Appellee. ON BRIEF: Michael F. Joseph, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Rene Salvador Romero, a native and citizen of El Salvador, 

was convicted of illegally reentering the United States. See 8 

U.S.C. § 1326(a). He now appeals his 43-month sentence. We 

affirm.

In calculating Romero’s advisory guideline range, the 

district court applied a 12-level enhancement to his base 

offense level under U.S.S.G. § 2L1.2(b)(1)(B). This section 

directs the court to add 12 levels to the base offense level if 

the defendant was deported, or unlawfully remained in the United 

States, “after a conviction for a felony drug trafficking 

offense.” For purposes of § 2L1.2, a “felony” is “any federal, 

state, or local offense punishable by imprisonment for a term 

exceeding one year.” U.S.S.G. § 2L1.2 cmt. n2. Romero contends 

that the enhancement is inapplicable to him because the 

predicate conviction – his 1999 Texas state-court conviction for 

delivery by constructive transfer of less than one gram of 

cocaine – is not a felony under § 2L1.2(b)(1)(B). We review this 

matter de novo. United States v. Diaz-Ibarra, 522 F.3d 343, 347 

(4th Cir. 2008).

The State of Texas classifies Romero’s predicate conviction 

as a “state jail felony.” See Tex. Health & Safety Code 

§ 481.112(b). “State jail felonies were created . . . to relieve 

the pressures of prison overcrowding in Texas,” and the state 
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jail felony law “constituted both a realistic response to prison 

overcrowding and an attempt to preserve the legislature’s 

judgment that state jail felonies were indeed still felonies in 

substance.” United States v. Caicedo-Cuero, 312 F.3d 697, 704-05 

(5th Cir. 2002). Categorized as “the lowest quantum of 

punishment of all Texas felonies,” United States v. CalderonPena, 383 F.3d 254, 261 n.11 (5th Cir. 2004) (en banc), state 

jail felonies are punishable by a sentence of imprisonment of 

between 180 days and two years, see Tex. Penal Code § 12.35(a).

However, two alternative statutory provisions permit a 

sentencing court to dispose of state jail felonies in a more 

lenient manner. First, a sentencing court may punish a state 

jail felony “by imposing the confinement permissible as 

punishment for a Class A misdemeanor if . . . the court finds 

that such punishment would best serve the ends of justice.” Tex.

Penal Code § 12.44(a). Punishment for a Class A misdemeanor 

includes “confinement in jail for a term not to exceed one 

year.” Tex. Penal Code § 12.21. Second, upon request of the 

prosecuting attorney, a sentencing court “may authorize the 

prosecuting attorney to prosecute a state jail felony as a Class 

A misdemeanor.” Tex. Penal Code § 12.44(b). “Texas case law 

indicates that a crime remains a felony even if punished as a 

misdemeanor under § 12.44.” United States v. Rivera-Perez, 322 

F.3d 350, 352 (5th Cir. 2003).
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In Romero’s case, the Texas court convicted him of a state 

jail felony but then exercised its discretion under § 12.44(a) 

and sentenced him as a Class A misdemeanant to 180 days

imprisonment. Relying on this fact, Romero argues that his prior 

conviction is not a felony under § 2L1.2(b). We disagree. 

Regardless of the ultimate sentence he received, Romero was in 

fact convicted of a drug trafficking offense that was punishable 

by a term exceeding one year. That conviction therefore 

qualifies as a felony for purposes of § 2L1.2(b), and the 

district court did not err in applying the enhancement in 

calculating Romero’s offense level. See, e.g., Rivera-Perez, 322 

F.3d at 352 (holding that a conviction for a Texas state jail 

felony that exposed the defendant to a sentence of more than one 

year is a “felony” for purposes of § 2L1.2(b) regardless of 

whether the defendant was sentenced under § 12.44); United 

States v. Nava-Zamora, 195 Fed. App’x 801, 803 (10th Cir. 2006) 

(same).*

Based on the foregoing, we affirm Romero’s sentence.

AFFIRMED

 *

We have considered Romero’s other arguments relating to his 

sentence and find them to be without merit.