UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4087
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAXIMILIANO PENALOZA-REBOLLAR, a/k/a Ramiro Pesina, a/k/a
Daniel Aguerre-Rodriguez,
Defendant – Appellant.
No. 11-4091
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAXIMILIANO PENALOZA-REBOLLAR, a/k/a Ramiro Pesina, a/k/a
Daniel Aguerre-Rodriguez, a/k/a Tomas Pelaez Isidoro,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:05-cr-00128-NC-UA-1; 1:09-cr-
00415-NCT-1)
Submitted: October 28, 2011 Decided: November 9, 2011
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Terri-Lei O’Malley, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Maximiliano Penaloza-
Rebollar appeals the 76-month (combined) sentence imposed upon
his guilty plea to one count of illegal reentry after
deportation for an aggravated felony, in violation of 8 U.S.C.
§ 1326 (a), (b)(2) (2006), and revocation of his supervised
release. At sentencing, the district court applied a 16-level
enhancement, pursuant to U.S. Sentencing Guidelines Manual
(USSG) § 2L1.2(b)(1)(A)(ii) (2009), based on a prior conviction
for first degree manslaughter.
Penaloza-Rebollar’s sole claim on appeal is that the
district court erred in applying the enhancement because the
conviction was nearly twenty years old. As Penaloza-Rebollar
concedes, his 1985 conviction for first degree manslaughter is
properly designated as a predicate offense for purposes of USSG
§ 2L1.2(b)(1)(A)(ii) (defining “aggravated felony” for purposes
of enhancing sentence of a deported alien who illegally reenters
the United States). However, he argues that the sentencing
Guidelines otherwise exclude convictions older than 15 years
when calculating criminal history score. See USSG § 4A1.2(e).
Therefore, he argues, there is an inconsistency/ambiguity in the
Guidelines which, applying the rule of lenity, should be
construed in his favor.
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This court reviews a sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires consideration of both
the procedural and substantive reasonableness of a sentence.
Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010). In determining the procedural reasonableness of a
sentence, this court considers whether the district court
properly calculated the defendant’s Guidelines range, treated
the Guidelines as advisory, considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed any arguments presented by the parties,
and sufficiently explained the selected sentence. Gall, 552
U.S. at 51. A sentence imposed within the properly calculated
Guidelines range is presumed reasonable by this court. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010),
cert. denied, 131 S. Ct. 3078 (June 27, 2011).
Section 2L1.2(b)(1)(A)(ii) provides for a 16-level
increase if a defendant illegally reenters the United States
after being convicted of a “crime of violence,” including
manslaughter. The Application Notes do not provide a time limit
applicable to prior convictions. We find that there is no
ambiguity or inconsistency between the treatment accorded to
prior convictions under USSG § 2L1.2 and criminal history
calculations in Chapter 4. See, e.g., United States v. King,
516 F.3d 425, 432 (6th Cir. 2008) (“[T]he structure of Chapter 2
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- that provisions that intend to apply the time limits of
§ 4A1.2(e) explicitly invoke Chapter 4 - gives us guidance as to
the meaning of § 2D1.1(a)(1) and makes the rule of lenity
inapplicable”); see also United States v. Olmos-Esparza, 484
F.3d 1111 (9th Cir. 2007) (upholding § 2L1.2(b) enhancement
where prior conviction was more than 15 years old); United
States v. Torres-Duenas, 461 F.3d 1178 (10th Cir. 2006); United
States v. Camacho-Ibarquen, 410 F.3d 1307 (11th Cir. 2005);
United States v. Gonzalez, 112 F.3d 1325 (7th Cir. 1997).
Accordingly, we affirm Penaloza-Rebollar’s sentence.
We grant Penaloza-Rebollar’s motion to file a supplemental
brief, but 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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