UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4161
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROEL SOTO-VALENCIA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-04-924)
Submitted: June 23, 2005 Decided: July 20, 2005
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William T. Clarke, THE LEGAL CLINIC OF SARRATT & CLARKE,
Greenville, South Carolina, for Appellant. Maxwell Barnes Cauthen,
III, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Roel Soto-Valencia appeals from the judgment of the
district court convicting him after a plea of guilty to entering
the United States illegally, having been previously deported on the
basis of a conviction for an aggravated felony, in violation of 8
U.S.C. § 1326 (2000). In his appeal, filed pursuant to Anders v.
California, 386 U.S. 738 (1967), counsel for Soto-Valencia claims
that the district court erred in sentencing him to sixty-four
months’ imprisonment and failing to depart downward from the
applicable sentencing guidelines range.
Although the Sentencing Guidelines are no longer
mandatory, the Supreme Court has made clear that a sentencing court
must still “consult [the] Guidelines and take them into account
when sentencing.” United States v. Booker, 125 S. Ct. 738, 767
(2005). A district court should first determine the appropriate
sentencing range under the Guidelines, making all factual findings
appropriate for that determination. See United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005) (applying Booker on plain error
review). The court should consider this sentencing range along
with the other factors described in 18 U.S.C. § 3553(a) (2000), and
then impose a sentence. Id. If that sentence falls outside the
Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C. § 3553(c)(2) (2000). Id. The
sentence must be “within the statutorily prescribed range and . . .
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reasonable.” Id. at 546-47. We have reviewed the record,
including the Sentencing Guidelines recommendation and
Soto-Valencia’s criminal history, and we cannot conclude that the
district court’s imposition of sentence was unreasonable.
Accordingly, we deny this claim.
Soto-Valencia also claims that the district court erred
in denying his motion for a downward departure. A sentencing
court’s denial of a motion to depart downward is not reviewable on
appeal unless it results from a mistaken belief that the court
lacks the authority to depart. United States v. Carr, 271 F.3d
172, 176 (4th Cir. 2001). Nothing in the record suggests the
district court was under the impression it could not award a
downward departure. Accordingly, we likewise deny this claim.
Finding no meritorious issues upon our review of the
record, we affirm the judgment of the district court. 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 a 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
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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