UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4025
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESUS REYES, a/k/a Carlos Rodriguez,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-5881)
Submitted: September 2, 2005 Decided: September 28, 2005
Before WILKINSON, MOTZ, 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Affirmed by unpublished per curiam opinion.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. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On May 18, 2004, this court affirmed Jesus Reyes’s
conviction and sentence. See United States v. Reyes, No. 04-4025,
2004 WL 1116354 (4th Cir. May 18, 2004) (unpublished). On
January 24, 2005, the Supreme Court granted Reyes’s petition for
writ of certiorari, vacated this court’s judgment and remanded to
this court for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). Having reconsidered Reyes’s
sentence in light of Booker and its progeny, we find no reversible
error. Accordingly, we affirm.
Jesus Reyes, a.k.a. Carlos Rodriguez, pled guilty to
being present in the United States after deportation following his
conviction for an aggravated felony in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2000). Reyes was assigned a base offense level
of eight. See U.S. Sentencing Guidelines Manual § 2L1.2(a) (2000).
Reyes’s base offense level was increased twelve levels under
§ 2L1.2(b)(1)(B) because of his prior deportation following a
felony drug trafficking conviction resulting in the imposition of
a sentence of thirteen months or less. The district court then
applied a three-level adjustment for acceptance of responsibility,
thereby giving Reyes an adjusted offense level of seventeen. Reyes
was placed in criminal history category IV, which included a
two-point increase under § 4A1.1(d) because the offense was deemed
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to have been committed while he was serving a term of imprisonment.
Therefore, Reyes’s guideline range was 37 to 46 months.
At sentencing, Reyes objected both to the two-point
increase under § 4A1.1(d) and the fact that his federal sentence
would run consecutively to his existing state sentence under
§ 5G1.3(a). The district court sentenced Reyes to a term of
imprisonment for forty-one months. Over Reyes’s objection, the
district court imposed this sentence to be served consecutively to
the undischarged state sentence in accordance with § 5G1.3(a).
On appeal, Reyes argues that the district court committed
clear error in assessing two additional criminal history points and
imposing a consecutive sentence. He maintains that he did not
voluntarily incarcerate himself and had no control over being found
in prison; thus, he should not be penalized for his inability to
leave the country.
We review factual determinations made in sentencing
proceedings for clear error and legal conclusions de novo. United
States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996). Section 1326(a)
plainly states that the offense of unlawful reentry is committed
whenever a previously deported alien, without permission, “enters,
attempts to enter, or is at any time found in, the United States.”
Therefore, the language of the statute clearly encompasses the
circumstances in which Reyes was discovered.
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Next, Reyes argues that he is entitled to resentencing
pursuant to Booker because he was sentenced under a mandatory
scheme. In Booker, the Supreme Court held Blakely v. Washington,
542 U.S. 296 (2004), applied to the federal sentencing guidelines
and that the mandatory manner in which the guidelines required
courts to impose sentencing enhancements based on facts found by
the court by a preponderance of the evidence violated the Sixth
Amendment. Thus, when a defendant pleads guilty and is sentenced
under the mandatory guideline scheme, “[a]ny 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.” Booker, 125 S. Ct. at
756.
Reyes concedes that a Sixth Amendment violation did not
occur as he admitted to the facts upon which the district court
enhanced his sentence. Reyes’s non-constitutional claim, that he
is entitled to resentencing because he was sentenced under a
mandatory sentencing scheme, raised for the first time on appeal,
is reviewed for plain error. See United States v. White, 405 F.3d
208, 215 (4th Cir. 2005). Reyes bears the burden of showing that
this error affected his substantial rights. Id. at 223. Because
there is no indication in the record that the district court would
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have imposed a lower sentence under an advisory sentencing system,
Reyes cannot make the necessary showing. Id. at 224-25.
We therefore affirm the sentence imposed by the district
court. 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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