UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4758
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELOY LUEVANO-AVALOS,
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-04-87)
Submitted: July 27, 2005 Decided: August 22, 2005
Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North Carolina,
for Appellant. Angela Hewlett Miller, United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eloy Luevano-Avalos pleaded guilty to illegal reentry of
an aggravated felon in violation of 18 U.S.C. §§ 1326(a), (b)(2)
(2000). He was sentenced in August 2004 to twenty-eight months in
prison followed by two years of supervised release. We affirm
Luevano-Avalos’ conviction but vacate his sentence and remand for
resentencing.
On appeal, his counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating there were no
meritorious issues for appeal but addressing the sentence in light
of Blakely v. Washington, 542 U.S. 296 (2004). His initial Anders
brief argued that his sentence was imposed in violation of Blakely
because, under Blakely, the sentencing guidelines were
presumptively unconstitutional and because of the calculation of
his criminal history points. Although Luevano-Avalos was informed
of his right to file a pro se supplemental brief, he did not do so.
United States v. Booker, 125 S. Ct. 738 (2005), issued
while this appeal was pending, and this court invited the parties
to file supplemental briefs in light of Booker. Luevano-Avalos’
supplemental brief argues his sentence violated the Sixth Amendment
under Booker, and this error was preserved by his objection at
sentencing. The Government waived its right to file a supplemental
brief and conceded that Luevano-Avalos’ sentence should be vacated
and remanded for resentencing because the sentencing range was
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affected by factors other than Luevano-Avalos’ prior convictions.
The Government cited United States v. Hughes, 401 F.3d 540 (4th
Cir. 2005).1
We find no Sixth Amendment error in Luevano-Avalos’
sentence. He received one enhancement for being previously
deported after a conviction for a felony that is a drug trafficking
offense for which the sentence imposed was thirteen months or less.
See USSG § 2L1.2(b)(1)(B). However, even after Booker, a district
court does not commit error by relying on the existence of a prior
conviction to support a sentencing enhancement. See Booker, 125 S.
Ct. at 756 (“Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt.”).
Similarly, Luevano-Avalos contends that under the Supreme
Court’s decision in Blakely (and now Booker), the district court
erroneously calculated his criminal history score, as the court had
to make factual findings beyond the mere fact of conviction.
Luevano-Avalos was assigned one point for his 2001 possession of
1
We note that the “plain error” standard of review employed in
Hughes is not controlling in this case because Luevano-Avalos
preserved error under Booker for appellate review by lodging a
general objection under Blakely at sentencing, unlike the appellant
in Hughes.
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marijuana for sale conviction and two points because he committed
the instant offense while on probation for his prior conviction.
The district court’s assessment of criminal history points was
based on the summary of the conviction in the presentence report,
to which Luevano-Avalos lodged no specific objections. In
addition, the calculation involved determining only whether
Luevano-Avalos was convicted of the prior offense and his status
relative to the prior conviction when he committed the instant
offense. We therefore find the district court’s assessment of
criminal history points did not violate the Sixth Amendment.
Finally, our review of the record under Anders requires
us to assess whether the district court erred in failing to treat
the Guidelines as advisory. As Luevano-Avalos properly raised this
issue in the district court by objecting to his sentence based on
Blakely, we review for harmless error. The Government bears the
burden in harmless error review of showing beyond a reasonable
doubt that the error did not affect the defendant’s substantial
rights. United States v. Mackins, 315 F.3d 399, 405 (4th Cir.
2003). The Government did not meet this burden because the
district court gave no indication what the sentence would have been
had the district court not been bound by the Guidelines.2 We would
have to speculate that the district court’s error in thinking
2
We also note the Government expressly waived its right to
file a supplemental brief opposing remand.
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itself bound by the Guidelines did not affect the sentence. In
light of Booker, we vacate Luevano-Avalos’ sentence and remand for
resentencing.3 Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546 (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 . . . reasonable.” Id. at 546-47.
As required by Anders, we have reviewed the entire record
and have found a meritorious issue for appeal. We therefore affirm
Luevano-Avalos’ conviction but vacate his sentence and remand for
resentencing. We dispense with oral argument because the facts and
3
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Luevano-Avalos’
sentencing.
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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