UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4158
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN GARCIA-AVALINO,
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-03-370)
Submitted: June 18, 2004 Decided: July 8, 2004
Before WILKINSON, SHEDD, 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Affirmed by unpublished per curiam opinion.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. Arnold L. Husser, Angela Hewlett Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Juan Garcia-Avalino appeals his conviction and sentence
for illegally reentering the United States without the permission
of the United States Attorney General after having previously been
deported subsequent to a felony conviction, in violation of
8 U.S.C. § 1326(a), (b)(1) (2000). Garcia-Avalino’s attorney has
filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), raising one issue but stating that, in his view, there are
no meritorious grounds for appeal. Although notified of his right
to do so, Garcia-Avalino has not filed a pro se supplemental brief.
Finding no reversible error, we affirm.
In the Anders brief, counsel questions whether the
district court erred in sentencing Garcia-Avalino to thirty months
of imprisonment. We find that we have no authority to review the
district court’s decision to sentence Garcia-Avalino to thirty
months because this sentence is within the guideline range and is
below the statutory maximum sentence of ten years. See 8 U.S.C.
§ 1326(b)(1) (setting forth statutory maximum). Because Garcia-
Avalino’s sentence does not exceed the maximum allowed by the
Sentencing Guidelines or statute, we will not review it on appeal.
See United States v. Porter, 909 F.2d 789, 794 (4th Cir. 1990)
(finding challenge to court’s exercise of discretion in setting a
sentence within a properly calculated guideline range not
addressable on appeal).
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Garcia-Avalino’s conviction and
sentence. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. 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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