UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4921
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN MARTIN HERNANDEZ-HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-04-134)
Submitted: August 15, 2005 Decided: September 27, 2005
Before WILKINSON, WILLIAMS, and TRAXLER, 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Juan Martin Hernandez-Hernandez pled guilty to one count
of illegal reentry by a deported aggravated felon, 8 U.S.C.
§ 1326(a) (2000), and was sentenced to forty-one months
imprisonment. He appeals, claiming that the district court erred
in applying the federal sentencing guidelines as mandatory in
violation of United States v. Booker, 125 S. Ct. 738 (2005).
Finding no error, we affirm.
The indictment alleged that Hernandez-Hernandez had been
convicted in March 2001 in Texas state court of aggravated sexual
assault of a child. At sentencing, the district court increased
Hernandez-Hernandez’s base offense level by sixteen levels because
the Texas conviction constituted a crime of violence within the
meaning of U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii)
(2002). After a three-level reduction for acceptance of
responsibility, Hernandez-Hernandez’s total offense level was
determined to be thirteen. With a criminal history category of II,
the resulting guidelines range was forty-one to fifty-one months
imprisonment; the district court imposed a sentence at the bottom
of the range. The court also announced an alternative sentence of
four years, pursuant to this court’s decision in United States v.
Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381
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F.3d 316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051
(2005).
Hernandez-Hernandez’s only argument on appeal is that the
district court erred by treating the sentencing guidelines as
mandatory in determining his sentence. Hernandez-Hernandez does
not challenge any enhancements to his sentence. Under Booker, in
reviewing sentences that do not involve a Sixth Amendment
violation, this court applies the harmless error doctrine in
determining whether resentencing is required. Booker, 125 S. Ct.
at 769. The harmless error standard permits an error at sentencing
to be disregarded if the reviewing court is certain that any such
error “did not affect the district court’s selection of the
sentence imposed.” Williams v. United States, 503 U.S. 193, 203
(1992). Here, because the district court imposed an alternate
discretionary sentence that was actually higher than the guideline
sentence, the error inherent in the application of the guidelines
as mandatory did not affect the court’s ultimate determination of
Hernandez-Hernandez’s sentence. Accordingly, we affirm. 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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