United States v. Hernandez-Hernandez

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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