UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4808
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOUGLAS RENE AYALA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cr-00250-AW-1)
Submitted: March 29, 2012 Decided: April 2, 2012
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ron Earnest, LAW OFFICE OF RON EARNEST, Riverdale, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, William
D. Moomau, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas Rene Ayala pled guilty to illegal reentry by a
previously deported aggravated felon in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006). Ayala appeals his conviction and the
fifty-one month sentence imposed by the district court on three
grounds: (1) that the district court plainly erred in failing
sua sponte to order withdrawal of Ayala’s guilty plea; (2) that
the district court plainly erred in enhancing Ayala’s offense
level based on a finding that his prior Maryland conviction for
second degree assault was a “crime of violence” under U.S.
Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii)
(2010); and (3) that the sentence is substantively unreasonable
because the district court did not adequately consider the
circumstances of the offense. We affirm.
Because the first two claims were not preserved in the
district court, we review them for plain error. “To establish
plain error, [an appellant] must show that an error occurred,
that the error was plain, and that the error affected his
substantial rights.” United States v. Muhammad, 478 F.3d 247,
249 (4th Cir. 2007). Neither claim meets this high standard.
As to the first claim, the district court properly
informed Ayala at the guilty plea proceeding that he faced up to
twenty years imprisonment for his offense. The court then
reviewed the offense level and criminal history category Ayala
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would likely earn, but emphasized that there were “no
predictions as to what the sentence will be.” Ayala assured the
court that no one had forecast that he would receive a specific
sentence. At sentencing, Ayala’s criminal history category was
one level higher than that discussed at the plea colloquy.
Although Ayala did not move the district court to withdraw his
guilty plea, he argues on appeal that the district court should
sua sponte have ordered such a withdrawal in light of this
disparity.
We reject this argument. The district court informed
Ayala during the Fed. R. Crim. P. 11 hearing of the twenty-year
maximum penalty, that he could be sentenced up to that amount,
and that no one could predict the length of his sentence. The
district court also ensured that no one had made any guarantees
to Ayala as to the length of his sentence. Ayala concedes that
the Guidelines range applied to him was correctly calculated.
Accordingly, this claim entitles him to no relief.
Ayala next challenges the district court’s
characterization of his prior Maryland conviction for second
degree assault as a crime of violence. Again, we review his
claim for plain error. See United States v. Strieper, 666 F.3d
288, 295 (4th Cir. 2012) (applying plain error review where
appellant failed to object to enhancement at sentencing).
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Under USSG § 2L1.2(b)(1)(A)(ii), a defendant’s base
offense level is enhanced sixteen levels if he reentered the
United States after having been convicted of a felony “crime of
violence.” A “crime of violence” under this provision includes
an offense under state law “that has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” USSG § 2L1.2, cmt. n.1(B)(iii).
Upon reviewing the record, we find no error. We have
held that, because the offense in question, second degree
assault under Maryland law, cannot categorically be found to be
a crime of violence, a district court may use the modified
categorical approach and look beyond the statutory elements of
the crime to the charging document, the plea colloquy
transcripts, or the plea agreement to determine whether that
offense involved the use of physical force against the person of
another. United States v. Donnell, 661 F.3d 890, 893 (4th Cir.
2011); Shepard v. United States, 544 U.S. 13, 26 (2005). Here,
the district court properly consulted the state transcripts of
the guilty plea colloquy and determined that Ayala admitted
using physical force against the victim. Therefore, Ayala’s
prior Maryland conviction for second degree assault constituted
a crime of violence, and the district court properly applied the
USSG § 2L1.2(b)(1)(A)(ii) enhancement.
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Finally, Ayala challenges the substantive
reasonableness of his sentence, arguing that the district court
failed to accord sufficient weight to the circumstances of the
offense and his history and characteristics. We review a
sentence for reasonableness, using an abuse of discretion
standard of review. Gall v. United States, 552 U.S. 38, 51
(2007). In assessing the substantive reasonableness of the
sentence, we take into account the totality of the
circumstances. Id. A sentence within the properly calculated
Guidelines range is presumptively reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007).
After reviewing the record, we conclude that Ayala’s
sentence is substantively reasonable. The fifty-one month
sentence is at the low end of the properly calculated Guidelines
range, and Ayala has offered nothing to rebut the presumption of
reasonableness accorded that sentence.
Accordingly, we affirm the district court’s judgment.
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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