United States v. Martinez

                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-4858



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RICARDO MARTINEZ,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-04-17-H)


Submitted:   March 23, 2005                 Decided:   April 11, 2005


Before LUTTIG, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Ricardo Martinez pled guilty to illegal reentry following

conviction for an aggravated felony, 8 U.S.C. §§ 1326(a), (b)(2)

(2000).     The district court sentenced Martinez to sixty months

imprisonment.     The district court also specified an identical

alternative sentence of sixty months pursuant to this court’s

recommendation in United States v. Hammoud, 378 F.3d 426 (4th Cir.

2004) (order), opinion issued by 381 F.3d 316, 353-54 (4th Cir.

2004) (en banc), cert. granted and judgment vacated, 125 S. Ct.

1051 (2005).

            Martinez appealed, challenging the sixteen-level judicial

enhancement applied at sentencing, in light of the Supreme Court’s

decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).        We

conclude that, because the alternative sentence pronounced by the

district court was identical to the mandatory sentence imposed

under the federal sentencing guidelines as they existed at that

time, any error resulting from the sentence imposed by the district

court was harmless.    See United States v. Booker, 125 S. Ct. 738,

769 (2005).      Accordingly, we affirm Martinez’s 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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