United States v. Reza

142 F. App'x 694

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 29, 2005
• Docket: 04-4263
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4263

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FIDEL REZA, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. N. Carlton Tilley, Jr., Chief District Judge. (CR-96-135; CR-03-273)

Submitted: July 8, 2005 Decided: July 29, 2005

Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jerry D. Jordan, Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Angela Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Fidel Reza, Jr., pleaded guilty to one count of illegal

reentry by a deported aggravated felon, in violation of 8 U.S.C.

§ 1326(a) (2000). He was sentenced to sixty-one months in prison.

Reza now appeals. His attorney has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that, in his

opinion, there are no meritorious issues for review. Reza has

filed a pro se supplemental brief claiming that his sentence

violates United States v. Booker, 125 S. Ct. 738 (2005), and

Blakely v. Washington, 542 U.S. 296 (2004). Finding no error, we

affirm.

I.

Reza, a citizen of Mexico, pleaded guilty in 1996 to

possession with intent to distribute marijuana and carrying a

firearm during a drug trafficking offense. After serving his

sentence, he was deported to Mexico in November 2000. On March 13,

2003, law enforcement agents learned that Reza had returned to this

country without permission. Reza was arrested in North Carolina on

July 21, 2003. He admitted that he had entered the United States

illegally on May 6, 2003, with the assistance of an alien smuggler

and that he had not received permission from the Attorney General

to apply for reentry.

- 2 - Reza pleaded guilty pursuant to a written plea agreement.

The transcript of Reza’s Fed. R. Crim. P. 11 hearing discloses full

compliance with that Rule. We note especially that Reza understood

the maximum sentence to which he was statutorily subject and that

his sentence would be determined by reference to the sentencing

guidelines.

Reza’s presentence report (psr) assigned a base offense

level of 8. See U.S. Sentencing Guidelines Manual § 2L1.2 (2003).

Sixteen levels were added because Reza was previously deported afer

his conviction for a firearms offense. See USSG

§ 2L1.2(b)(1)(A)(iii). Three levels were deducted for acceptance

of responsibility. See USSG § 3E1.1(b). With an adjusted offense

level of 21 and a criminal history category of IV, Reza’s guideline

range was 57-71 months.

Reza did not object to the psr. At sentencing, the

district court adopted the psr and sentenced Reza to sixty-one

months in prison.

II.

Although Reza claims in his pro se informal brief that

his sentence violates Booker and Blakely, it does not. In both

cases, the Supreme Court reaffirmed its holding in Almendarez-

Torres v. United States, 523 U.S. 224, 244 (1998), that the fact of

a prior conviction need not be proven to a jury beyond a reasonable

- 3 - doubt. Booker, 125 S. Ct. at 756; Blakely, 542 U.S. at ___, 124 S.

Ct. at 2536. Here, the only enhancement that Reza received was for

the firearm conviction in 1996 -- a prior conviction that he did

not dispute and that is apparent from the face of the judicial

record.

Nor was the district court’s treatment of the guidelines

as mandatory an error affecting Reza’s substantial rights. There

is no nonspeculative basis suggesting that the district court would

have sentenced Reza to a different sentence had the guidelines been

advisory instead of mandatory. See United States v. White, 405

F.3d 208, 223-25 (4th Cir. 2005).

III.

In accordance with Anders, we have examined the entire

record and find no meritorious issues for appeal. Accordingly, we

affirm Reza’s conviction and sentence. This court requires that

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, 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. The motion for

summary affirmance is denied as moot. We dispense with oral

argument because the facts and legal contentions are adequately

- 4 - presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

- 5 -