UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALEJANDRO CRUZ-CARRILLO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CR-04-182)
Submitted: August 26, 2005 Decided: September 22, 2005
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alejandro Cruz-Carrillo, a Mexican national, pled guilty
to one count of illegal reentry of an aggravated felon after
deportation in violation of 8 U.S.C. § 1326(a), (b)(2) (2000). The
district court sentenced Cruz-Carrillo to seventy-one months’
imprisonment. The court also gave an alternative sentence
according to 18 U.S.C. § 3553(a) (2000) of seventy-one months,
treating the guidelines as advisory, under United States v.
Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381
F.3d 316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051
(2005). Cruz-Carrillo’s counsel filed a brief under Anders v.
California, 386 U.S. 738 (1967), conceding Cruz-Carrillo admitted
to all the facts used to enhance his sentence, but raising the
issue of whether the court erred under United States v. Booker, 543
U.S. , 125 S. Ct. 738 (2005), by applying the sentencing
guidelines as mandatory. Cruz-Carrillo was notified of the
opportunity to file a pro se supplemental brief but has not done
so. Finding no error, we affirm.
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
The Court remedied the constitutional violation by severing two
statutory provisions, 18 U.S.C. § 3553(b)(1) (requiring sentencing
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courts to impose a sentence within the applicable guideline range),
and 18 U.S.C. § 3742(e) (2000) (setting forth appellate standards
of review for guideline issues), thereby making the guidelines
advisory. Booker, 125 S. Ct. at 756-57. After Booker, courts must
calculate the appropriate guidelines range, consider the range in
conjunction with other relevant factors under the guidelines and 18
U.S.C. § 3553(a), and impose a sentence. This remedial scheme
applies to any sentence imposed under the mandatory sentencing
guidelines, regardless of whether or not the sentence violates the
Sixth Amendment. Booker, 125 S. Ct. at 769 (Breyer, J., opinion of
the Court). However, the Court was careful to note that its
decision did not render every sentence unconstitutional. Courts
were advised that ordinary doctrines such as plain error and
harmless error would still apply. Id.
Here, because the district court imposed an alternative
discretionary sentence pursuant to § 3553(a) that was identical to
the guidelines sentence, the error inherent in the application of
the guidelines as mandatory did not affect the court’s ultimate
determination of the sentence. Cf. United States v. Hazelwood, 398
F.3d 792, 801 (6th Cir. 2005) (finding error not harmless and
remanding when court’s comments indicated it might have imposed a
lesser sentence under advisory guidelines scheme). After
thoroughly reviewing the record, we conclude that any possible
Booker error was harmless.
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Finding no meritorious issues upon our review of the
record, we affirm Cruz-Carrillo’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 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
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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