Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4025
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESUS REYES, a/k/a Carlos Rodriguez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-234)
Submitted: May 13, 2004 Decided: May 18, 2004
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jesus Reyes pled guilty to being knowingly and unlawfully
found in the United States after being previously deported and
being previously convicted in the United States for an aggravated
felony in violation of 8 U.S.C. § 1326(a) (2000). The district
court sentenced Reyes to a forty-one month term of imprisonment,
one-year term of supervised release, and a $100 special assessment.
Reyes was previously deported following his conviction in
January 1996 for possession with intent to distribute and
manufacture a Class A substance. After being deported, Reyes
illegally reentered the United States. In March 2003, agents of
the Bureau of Immigration and Customs Enforcement found Reyes
incarcerated in North Carolina serving a 30-36 month sentence for
trafficking in cocaine. Reyes was charged with the instant offense
and elected to plead guilty pursuant to a written plea agreement.
During sentencing, the district court added two points to
Reyes’ criminal history pursuant to the U.S. Sentencing Guidelines
Manual § 4A1.1(d) (2000), because Reyes committed the offense while
serving a term of imprisonment. After determining Reyes’
guidelines range, the court sentenced Reyes to a forty-one month
term of imprisonment. The court imposed this sentence
consecutively to the undischarged state sentence Reyes was serving
pursuant to USSG § 5G1.3(a), which mandates that if an offense is
committed while the defendant is serving a term of imprisonment for
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another offense, the sentence for the instant offense is to be
served consecutively to the undischarged term of imprisonment.
On appeal, Reyes argues that the court committed clear
error in assessing two additional criminal history points and
imposing a consecutive sentence because he committed the offense
while he was serving a term of imprisonment. We review factual
determinations made in sentencing proceedings for clear error and
legal conclusions de novo. United States v. Blake, 81 F.3d 498,
503 (4th Cir. 1996).
Reyes maintains that he did not voluntarily incarcerate
himself and had no control over being found in prison, thus he
should not be penalized for his inability to leave the country.
However, § 1326(a) plainly states that the offense of unlawful
reentry is committed whenever a previously deported alien, without
permission, “enters, attempts to enter, or is at anytime found in,
the United States.” The language of the statute thus clearly
encompasses the circumstances in which Reyes was discovered.
Accordingly, we affirm Reyes’ conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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