UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4843
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS DOMINGUEZ-BENAVIDES,
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-04-123)
Submitted: August 31, 2005 Decided: November 1, 2005
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William S. Trivette, 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Unpublished opinions are not binding precedent in this circuit.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:
Carlos Dominguez-Benavides appeals from his forty-two-
month sentence imposed pursuant to a guilty plea to one count of
reentry by a deported alien, in violation of 8 U.S.C. § 1326(a)
(2000). On appeal, Dominguez-Benavides’ counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), stating
that in his opinion there were no meritorious issues for appeal,
but raising the issue as to whether the district court erred under
Blakely v. Washington, 542 U.S. 296 (2004), in computing his
criminal history points and in imposing a sixteen-level enhancement
based on a prior drug trafficking conviction. After the Supreme
Court’s issuance of United States v. Booker, 125 S. Ct. 738 (2005),
counsel filed a supplemental brief arguing that Dominguez-Benavides
was erroneously sentenced under a mandatory application of the
federal sentencing guidelines. The Government has responded.
Although informed of his right to file a pro se brief, Dominguez-
Benavides has not done so.
Dominguez-Benavides first claims that the district
court’s calculation of his criminal history category and its
imposition of a sixteen-level enhancement for a prior drug
trafficking conviction for which the sentence exceeded thirteen
months violated Blakely and subsequently Booker. Because
Dominguez-Benavides preserved his objection at sentencing on both
grounds, we review for harmless error.
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We find no Sixth Amendment error in Dominguez-Benavides’
sentence. Based on the convictions listed in the presentence
report, the district court established a criminal history category
of II, and assessed a sixteen-level enhancement for having been
previously deported after a conviction for a felony that is a drug
trafficking offense for which the sentence imposed exceeded
thirteen months. See U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A)(i) (2003).
In Shepard v. United States, 125 S. Ct. 1254 (2005), the
Supreme Court instructed that Sixth Amendment protections apply to
disputed facts about a prior conviction that are not evident from
“the conclusive significance of a prior judicial record.” Id. at
1262-63. However, Dominguez-Benavides did not contest his criminal
history or any particular prior conviction. See United States v.
Collins, 412 F.3d 515, 522-23 (4th Cir. 2005) (finding no Sixth
Amendment violation where nature and separateness of predicate
offenses for career offender status was undisputed); cf. United
States v. Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding
that district court’s reliance on disputed facts about prior
conviction to determine that it was a crime of violence violated
the Sixth Amendment). Furthermore, the prior conviction on which
the sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)(i) was
based was clearly pled in the indictment. The district court’s
finding that the prior conviction resulted in a sentence that
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exceeded thirteen months is not the type of fact found outside the
indictment that is “too far removed from the conclusive
significance of a prior judicial record.” Washington, 404 F.3d at
842 (citing Shepard, 125 S. Ct. at 1262). We therefore conclude
that the district court’s determination of Dominguez-Benavides’
sentence did not violate his Sixth Amendment rights.
In his supplemental brief, Dominguez-Benavides argues
that under Booker, the district court erred in failing to treat the
guidelines as advisory. Because Dominguez-Benavides did not object
below to the mandatory application of the guidelines, we review for
plain error.* United States v. White, 405 F.3d 208, 215 (4th Cir.
2005). As Dominguez-Benavides fails to present any
non-speculative evidence or argument demonstrating that he would
have received a lower sentence had the district court appreciated
that the guidelines were not mandatory, we find that the district
court’s error of sentencing Dominguez-Benavides under a mandatory
guidelines scheme did not affect his substantial rights.
Accordingly, we find no plain error.
As required by Anders, we have reviewed the entire record
and have found no meritorious issue for appeal. We therefore
*
Dominguez-Benavides asserts that this issue was properly
preserved based on his objection under Blakely that was raised
before the district court. We find, however, that his objection
was narrowly tailored to the calculation of his criminal history
category and the imposition of the sixteen-level enhancement under
USSG § 2L1.2(b)(1)(A)(i).
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affirm Dominguez-Benavides’ 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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