UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4085
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIO HERNANDEZ-GONZALEZ, a/k/a Alex Cruz,
a/k/a Mario Hernandez, a/k/a Mario Gonzalez-
Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:05-cr-00271-ALL)
Submitted: August 23, 2006 Decided: September 14, 2006
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Douglas Scott Broyles, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mario Hernandez-Gonzalez pled guilty to illegal reentry
of an aggravated felon after deportation, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2000). He was sentenced to forty-one months’
imprisonment. Hernandez-Gonzalez’ attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), stating
that in her opinion there are no meritorious issues for appeal, but
raising as potential issues whether the district court erred by
accepting Hernandez-Gonzalez’ guilty plea without ensuring it was
knowingly and voluntarily entered and that there was a factual
basis for the plea, and by enhancing Hernandez-Gonzalez’ offense
level sixteen levels on the basis of a prior conviction that was
not charged in his indictment. Hernandez-Gonzalez was notified of
his right to file a pro se supplemental brief, but has not done so.
Finding no reversible error, we affirm.
Hernandez-Gonzalez’ counsel argues that the district
court erred in accepting Hernandez-Gonzalez’ guilty plea without
ensuring that there was a sufficient factual basis for finding that
he had been deported after obtaining a conviction for an aggravated
felony and that his plea was knowingly and voluntarily entered, in
violation of Fed. R. Crim. P. 11. Because Hernandez-Gonzalez did
not seek in the district court to withdraw his guilty plea, his
allegations of Rule 11 error are reviewed for plain error. See
United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir.
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2002)(holding that “plain error analysis is the proper standard for
review of forfeited error in the Rule 11 context”). Under plain
error review, this court may only notice an error that was not
preserved by timely objection if the defendant can demonstrate:
(1) that an error occurred, (2) that the error was plain, and
(3) that the error was material or affected the defendant’s
substantial rights. United States v. Olano, 507 U.S. 725, 731-32
(1993). Even when these three conditions are satisfied, the court
should only correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at
732.
Prior to accepting a guilty plea, the trial court must ensure
the defendant understands the nature of the charges against him,
the mandatory minimum and maximum sentences, and other various
rights, so it is clear that the defendant is knowingly and
voluntarily entering his plea, and determine whether there is a
factual basis for the plea. Fed. R. Crim. P. 11(b)(1),(3); United
States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991). After
a thorough review of the record, we find a proper Rule 11 colloquy
was conducted.
Hernandez-Gonzalez also claims that the district court
erred when it enhanced his sentence sixteen levels using a prior
conviction that was not charged in his indictment. However, the
government need not allege in its indictment and need not prove
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beyond reasonable doubt that a defendant had prior convictions for
a district court to use those convictions for purposes of enhancing
a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 246
(1998). U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2004)
applies a sixteen-level enhancement if the defendant was previously
deported after a “crime of violence,” defined in the commentary to
include an “aggravated assault.” USSG § 2L1.2, comment
(n.1(B)(iii)). In 2002, Hernandez-Gonzalez was convicted in North
Carolina of assault with a deadly weapon with intent to kill and he
was subsequently deported. We therefore find the district court
did not err in applying the sixteen-level enhancement.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Hernandez-Gonzalez’ conviction and sentence. This court requires
that counsel inform her 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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