UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4165
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SIXTO ESPINOZA-BARRETO, a/k/a Sixto Barreto-
Espinoza,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-393)
Submitted: April 24, 2006 Decided: May 9, 2006
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Bryan Gates, Winston-Salem, North Carolina, for Appellant. Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sixto Espinoza-Barreto pled guilty to reentry by a
deported alien, in violation of 8 U.S.C. §§ 1326(a), (b)(2) (2000).
In February 2005, the district court sentenced Espinoza-Barreto to
sixty-eight months’ imprisonment and three years’ supervised
release. In his appeal, filed pursuant to Anders v. California,
386 U.S. 738 (1967), counsel for Espinoza-Barreto claims that the
sentence was disproportionate to the offense committed, in
violation of the Eighth Amendment; that the sentence was
unreasonable, in light of United States v. Booker, 543 U.S. 220
(2005); and that the fact of a prior conviction, which was used to
enhance Espinoza-Barreto’s sentence, was not proven beyond a
reasonable doubt, in violation of the Sixth Amendment. The
Government elected not to file a brief. Although informed (in
English and Spanish) of his right to file a pro se brief, Espinoza-
Barreto has not done so.
Three factors are considered in conducting a
proportionality review: (1) the gravity of the offense and the
harshness of the penalty, (2) the sentences imposed on other
criminals in the same jurisdiction, and (3) the sentences imposed
for commission of the same crime in other jurisdictions. United
States v. Kratsas, 45 F.3d 63, 66 (4th Cir. 1995) (quoting Solem v.
Helm, 463 U.S. 277, 292 (1983)). We find that Espinoza-Barreto’s
sentence, which is well below the statutory maximum of twenty
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years’ imprisonment, see 8 U.S.C. § 1326(a) (2000), and within the
range advised by the United States Sentencing Guidelines,
withstands a proportionality analysis.
Further, the sentence is reasonable. After Booker, a
sentencing court is no longer bound by the range prescribed by the
sentencing guidelines. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005). However, in determining a sentence post-
Booker, sentencing courts are still required to calculate and
consider the guideline range prescribed thereby as well as the
factors set forth in 18 U.S.C. § 3553(a) (2000). Id.; see United
States v. Green, 436 F.3d 449 (4th Cir. 2006). Post-Booker, a
sentence will be affirmed if it is within the statutorily
prescribed range and is reasonable. Id. at 546-47. In addition,
“while we believe that the appropriate circumstances for imposing
a sentence outside the guideline range will depend on the facts of
individual cases, we have no reason to doubt that most sentences
will continue to fall within the applicable range.” United
States v. White, 405 F.3d 208, 219 (4th Cir. 2005). “[A] sentence
imposed within the properly calculated Guidelines range . . . is
presumptively reasonable.” Green, 436 F.3d at 457 (internal
quotation marks and citation omitted). Here, the record is clear
that the district court calculated and considered both the
guideline range and the § 3553(a) factors. Espinoza-Barreto has
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not rebutted the presumption that the district court imposed a
reasonable sentence.
Counsel’s final issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). In Almendarez-
Torres, 523 U.S. at 233-35, the Supreme Court held that the
government need not allege in its indictment and need not prove
beyond reasonable doubt that a defendant had prior convictions for
a district court to use those convictions for purposes of enhancing
a sentence. Although the opinion in Apprendi v. New Jersey, 530
U.S. 466 (2000), expressed some uncertainty regarding the future
vitality of Almendarez-Torres, we have subsequently concluded that
Almendarez-Torres was not overruled by Apprendi, and remains the
law. See United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.
2005).
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm Espinoza-Barreto’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
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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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