United States v. Benitez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4178

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SERGIO PINEDO BENITEZ, a/k/a Rolando Gomez,
a/k/a Rolando Gomez Maldonado,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00247-JAB)

Submitted: August 3, 2007 Decided: August 22, 2007

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Sergio Pinedo Benitez appeals from his conviction and

sixty-five month sentence after pleading guilty to one count of

illegal reentry of a deported alien felon, in violation of 8 U.S.C.

§ 1326(a) & (b)(2) (2000). Benitez’s counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there are no meritorious issues for appeal, but raising the issue

of whether Benitez’s sentence was reasonable. Benitez was given an

opportunity to file a supplemental pro se brief, but has not done

so. For the following reasons, we affirm.

This court reviews the imposition of a sentence for

reasonableness. United States v. Booker, 543 U.S. 220, 260-61

(2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.

2005). After Booker, courts must calculate the appropriate

guidelines range, making any appropriate factual findings. United

States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The court

then should consider the resulting advisory guidelines range in

conjunction with the factors under 18 U.S.C.A. § 3553(a) (West 2000

& Supp. 2006), and determine an appropriate sentence. Davenport,

445 F.3d at 370. This court will affirm a post-Booker sentence if

it is reasonable. Hughes, 401 F.3d at 546-47. This court has

repeatedly held that a sentence imposed within a properly

calculated Guidelines range is presumed reasonable, and the Supreme

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Court recently upheld this presumption. See Rita v. United States,

127 S. Ct. 2456 (2007).

The district court properly calculated the guideline

range. Specifically, the district court correctly applied a

sixteen-level enhancement because Benitez was previously deported

after a “crime of violence.” U.S. Sentencing Guidelines Manual

(“USSG”) § 2L1.2(b)(1)(A) (2005). A “crime of violence” explicitly

includes robbery. USSG § 2L1.2 cmt. n.1(B)(iii). On June 29,

1995, Benitez was convicted of robbery, and was subsequently

ordered deported on August 7, 1995. Thus, because Benitez’ prior

offense was a crime of violence, the district court did not err in

applying the sixteen-level enhancement.

Moreover, the district court treated the Guidelines as

advisory, and sentenced Benitez only after considering the

Sentencing Guidelines, the § 3553(a) factors, and counsel’s

arguments. Benitez’s sixty-five month sentence is presumptively

reasonable, as it is within the appropriate guideline range, and

below the twenty-year statutory maximum. See 8 U.S.C. § 1326(b)(2)

(2000). As neither Benitez nor the record suggests any information

to rebut the presumption, we find that Benitez’s sentence is

reasonable.

As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal. We therefore

affirm the district court’s judgment. This court requires that

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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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