UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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