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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10112
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS JOSEPH STAUDER, II,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
January 8, 1996
Before REAVLEY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:
At issue is whether, for sentencing for a felon in possession
of a firearm conviction, a Texas criminal deferred adjudication can
be used for calculating the base offense level under the Sentencing
Guidelines. We AFFIRM.
I.
Thomas Joseph Stauder, II, pleaded guilty to being a felon in
possession of a firearm. For calculating Stauder's base offense
level pursuant to U.S.S.G. § 2K2.1(a)(4)(A), and over Stauder's
objection, the district court included as a prior felony conviction
Stauder's 1991 guilty plea to aggravated assault in Texas state
court, for which he received a ten-year sentence, but with deferred
adjudication probation.

II.
Stauder maintains that his Texas deferred adjudication is not
a "conviction" under Texas law, and contends, therefore, that it
should not have been counted in calculating his base offense level.
Needless to say, we review, de novo, the district court's
application of the Guidelines. E.g., United States v. Sneed, 63
F.3d 381, 389 (5th Cir. 1995).
The base offense level for a defendant convicted of a firearm
offense is based on the number of certain types of prior felony
convictions. U.S.S.G. § 2K2.1. Section 2K2.1(a)(4)(A) provides
for a base offense level of 20 if the defendant "had one prior
felony conviction of either a crime of violence or a controlled
substance offense"; Stauder concedes that aggravated assault (his
Texas offense) is a crime of violence.
The commentary to § 2K2.1 refers to application note 3 to §
4B1.2 for the definition of "prior felony conviction(s)". U.S.S.G.
§ 2K2.1, comment. (n.5). That note defines a "prior felony
conviction" as "a prior adult federal or state conviction for an
offense punishable by death or imprisonment for a term exceeding
one year, regardless of whether such offense is specifically
designated as a felony and regardless of the actual sentence
imposed". U.S.S.G. § 4B1.2, comment. (n.3).
The commentary to § 2K2.1 provides also that, "[f]or purposes
of
determining
the
number
of
... convictions under
[§ 2K2.1(a)(4)(A)], count any such prior conviction that receives
any points under § 4A1.1 (Criminal History Category)". U.S.S.G. §
- 2 -

2K2.1(a)(4)(A), comment. (n.5) (emphasis added). The definitions
and instructions for computing criminal history state that "[a]
diversionary disposition resulting from a finding or admission of
guilt ... is counted as a sentence under § 4A1.1(c) even if a
conviction is not formally entered...." U.S.S.G. § 4A1.2(f)
(emphasis added).
Accordingly, as Stauder acknowledges, the Guidelines provide
that deferred adjudications resulting from a finding or admission
of guilt are to be considered in computing the criminal history
category. And, § 2K2.1 provides that any prior "conviction" that
receives points for purposes of determining the criminal history
category is to be considered in determining the number of prior
felony convictions for calculating the base offense level under §
2K2.1. Although § 2K2.1 uses the term "conviction", it refers
specifically to the criminal history provisions, which, as stated,
include deferred adjudications such as Stauder's in calculating a
defendant's criminal history score.*
*
Stauder's reliance on United States v. Hamilton, 48 F.3d 149,
153 (5th Cir. 1995) ("when adjudication of guilt is deferred, there
is no `conviction'" within meaning of FED. R. EVID. 609, which
permits a witness to be questioned about prior convictions);
Martinez-Montoya v. I.N.S., 904 F.2d 1018, 1025-26 (5th Cir. 1990)
(Texas deferred adjudication procedure does not result in final
conviction within meaning of immigration laws); and United States
v. Dotson, 555 F.2d 134, 135 (5th Cir. 1977) (upholding dismissal
of charge that defendant was a felon in possession of a firearm
because there was no adjudication of guilt and sentence was
suspended), is misplaced. In short, those cases did not involve
the interpretation of U.S.S.G. § 2K2.1.
- 3 -

III.
Based on the foregoing, we hold that the district court did
not misapply the Guidelines by considering Stauder's deferred
adjudication in calculating his base offense level. Stauder's
sentence is, therefore,
AFFIRMED.
- 4 -