**UNPUBLISHED** UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion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Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Rene Salvador Romero, a native and citizen of El Salvador, was convicted of illegal ly reent ering the United States. See 8 U.S.C. § 1326(a). He now appeals his 43

- month sentence . We affirm. In calculating Romero’s advisory guidel ine range, the district court appli ed a 12

- level enhancement to his base offense level under U.S.S.G. § 2L1.2(b)(1)(B)
. T his section directs the court to add 12 levels to the base offense level if the defendant was deported, or unlawfully remained in the U nited 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 R omero’s predicate conviction as a “state jail felony.” See Tex . Health & Safety Code § 481.112 (b)
. “S tate jail felonies were created . . . to relieve the pressures of prison overcrowding in Texas,” and the state3 jail felony law “constituted both a realistic response to prison overcrowding and an attempt to preserve the legislature’s judgment that state ja il 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. Calderon

Pena , 383 F.3d 254, 261 n.11 (5th Cir. 2004) (en banc) , state jail felon ies are punishable by a sentence of imprisonment of between 180 days and two years , s ee Tex . Penal Code § 12.35(a). However, two alternative statutory provisions permit a

s entencing court to dispose of state jail felo n ies 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.” Te x . 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).4 In Romero’s case, t he 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 d rug trafficking offense that was punishable by a term exceeding one year. That conv iction 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 expose d the defendant to a sentence of more than one year is a “felony” for purposes of § 2L1.2(b) regardless of whether the defendant wa s sentenced under § 12.44); United
States v. Nava

- Zamora , 195 Fed. App’x 801, 803 (10th Cir. 2006) (sa me). * 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.