UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4530
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AMADO ANTONIO CARTAGENA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00153)
Submitted: January 25, 2008 Decided: February 22, 2008
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Amado Antonio Cartagena pled guilty without a plea
agreement to unlawful reentry into the United States by a deported
alien, in violation of 8 U.S.C. § 1326(a), (b)(2) (2000), and was
sentenced to eighty months in prison. Cartagena timely appealed.
Cartagena’s attorney filed a brief in accordance with Anders v.
California, 386 U.S. 739 (1967), certifying that there are no
meritorious grounds for appeal, but questioning whether the
district court abused its discretion by not imposing a lower
sentence. The Government did not file a reply brief. Cartagena
was advised of his right to file a pro se supplemental brief, but
has not done so. Finding no reversible error, we affirm.
Cartagena suggests in a conclusory fashion that his
guilty plea and conviction are invalid. Cartagena agreed that
there was a factual basis to support his plea. The magistrate
judge followed Fed. R. Crim. P. 11 to ensure that Cartagena fully
understood the significance of his guilty plea and that the plea
was knowing and voluntary. Cartagena stated that he was of sound
mind and was not under the influence of drugs or alcohol, fully
understood the charges against him, and had discussed his charges
and potential sentence with his attorney. He agreed that if his
sentence was more severe than he expected, he was still bound by
his plea and would not be permitted to withdraw it. Cartagena also
agreed that no one had promised him a particular sentence and no
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one had forced him to plead guilty. The magistrate judge found
Cartagena’s plea was knowing and voluntary, and accepted the plea
of guilty.
At sentencing, the district court again questioned
Cartagena about the validity of his plea. Cartagena agreed that
his answers to the magistrate judge were true, that he understood
the court’s questions, and that he was indeed guilty of the crime
of illegal reentry of a deported alien. The district court
affirmed the magistrate judge’s findings that the plea was knowing
and voluntary and that Cartagena understood the charges, potential
penalties and consequences of his plea. Cartagena has not
demonstrated that his plea is invalid, and we conclude this claim
is meritless.
Cartagena next argues that the district court erred when
it added two points to his criminal history score because he was
serving his supervised release sentence when committing the instant
offense. Cartagena objected to the assignment of these points at
sentencing, but the court overruled the objection. Cartagena was
convicted on January 25, 2005, for trafficking cocaine. He
received a suspended sentence and a term of supervised release of
thirty-six months, and was subsequently deported. Cartagena
returned to the United States without permission and was indicted
on June 7, 2006, for illegal reentry pursuant to 8 U.S.C. § 1326.
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Cartagena’s indictment fell within the release period, and the
court properly assessed these two points.
While Cartagena admits he was on release at the time of
his arrest, he suggests that he never violated his supervised
release, so should not be assessed these two points. Contrary to
his assertion, under USSG § 4A1.1(d), two points are assessed if
the defendant commits an offense while under any criminal justice
sentence, including supervised release. Whether a defendant
violates the terms of his release is irrelevant. Cartagena’s
argument lacks merit.
Cartagena also contends that the district court should
not have assessed one criminal history point under USSG § 4A1.1(c)
for his 2005 felony cocaine conviction because this essentially
punishes him twice for the same offense in violation of his
constitutional rights. While the guidelines are now advisory in
nature, see United States v. Booker, 543 U.S. 220 (2005), the
computation of a defendant’s criminal history score and its use in
determining the relevant term of imprisonment have not been held
unconstitutional. See generally United States v. Cheek, 415 F.3d
349, 352-53 (4th Cir. 2005). Thus, we conclude the assignment of
this criminal history point was proper.
Moreover, the district court imposed a sentence within
the statutorily prescribed range and the sentence was reasonable.
While Cartagena argued at sentencing that a lower sentence should
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have been imposed, the district court did not err when it declined
to impose a variance sentence. After United States v. Booker, 543
U.S. 220 (2005), a district court is no longer bound by the range
prescribed by the sentencing guidelines. However, in imposing a
sentence post-Booker, courts still must calculate the applicable
guidelines range after making the appropriate findings of fact and
consider the range in conjunction with other relevant factors under
the guidelines and § 3553(a). Gall v. United States, 128 S. Ct.
586, 596 (2007); United States v. Moreland, 437 F.3d 424, 432 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). The court must give
both parties an opportunity to argue for “whatever sentence they
deem appropriate,” and the district judge “may not presume that the
Guidelines range is reasonable.” Gall, 128 S. Ct. at 596-97. This
court will affirm a post-Booker sentence if it “is within the
statutorily prescribed range and is reasonable.” Id. at 433
(internal quotation marks and citation omitted). “[A] sentence
within the proper advisory Guidelines range is presumptively
reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006); see Rita v. United States, 127 S. Ct. 2456, 2462, 2465
(2007).
Here, the district court sentenced Cartagena post-Booker
and appropriately treated the guidelines as advisory. The court
sentenced Cartagena after considering and examining the sentencing
guidelines and the § 3553(a) factors, as instructed by Booker. The
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parties were permitted to argue for the sentence thus desired.
Cartagena’s eighty-month sentence is well within the advisory
guidelines range of 70 to 87 months in prison and the twenty-year
statutory maximum sentence pursuant to 8 U.S.C. § 1362(b)(2)(2000).
The court explained that it had taken the sentencing guidelines and
§ 3553(a) factors into account, and the sentence imposed was based
upon Cartagena’s extensive prior record, continued involvement in
drug activity and illegal reentry into the United States, and the
need to protect the public from further crimes. Based upon these
findings, the court found a variance sentence inappropriate.
Neither Cartagena nor the record suggests any information to rebut
the presumption that his sentence was reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Cartagena’s conviction and sentence. This court
requires that counsel inform Cartagena, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Cartagena 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
Cartagena.
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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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