United States v. Sotelo , 177 F. App'x 366 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4471
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OSCAR GARDUNO SOTELO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CR-03-121)
Submitted: March 31, 2006 Decided: May 1, 2006
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
H. David O’Donnell, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Nancy S. Healey, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Oscar Garduno Sotelo, a Mexican citizen, appeals his
forty-six month sentence following his guilty plea to entering or
being found in the United States after having been removed
subsequent to a conviction for an aggravated felony without first
obtaining the permission of the Attorney General, in violation of
8 U.S.C. § 1326(a)(2)(A), (b)(2) (2000). We affirm.
Sotelo first contends the district court erred under U.S.
Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A) (2003) in
ruling his prior felony conviction for carnal knowledge, without
force, of a child between thirteen and fifteen years of age was a
crime of violence and applying a sixteen-level enhancement. We
review the district court’s determination de novo. See United
States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). Acknowledging
that a crime of violence includes “sexual abuse of a minor,” see
USSG § 2L1.2(b)(1) comment. (n.1(B)(iii)), Sotelo argues that
because the statute of conviction did not expressly use the term,
we should “look behind the categorical approach to determine
whether elements of [the] prior offense involved conduct presenting
a serious risk of physical injury to another.” However, because
the offense categorically constitutes “sexual abuse of a minor,”
see United States v. Pereira-Salmeron, 337 F.3d 1148, 1155 (9th
Cir. 2003), we conclude the district court did not err.
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Sotelo next contends the district court erred by
concluding he committed the instant offense while under a criminal
justice sentence and adding two criminal history points under USSG
§ 4A1.1(d).* We review a district court’s factual findings at
sentencing for clear error and its legal conclusions, including its
interpretation and application of the sentencing guidelines, de
novo. United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.
1989).
Sotelo admitted that he returned to the United States
shortly after his 1997 felony conviction for which he received a
two-year prison sentence that was suspended on the conditions that
he “be of good behavior” and obey all state and federal laws.
However, he contends the sentence was not a “criminal justice
sentence” because the sentencing court did not expressly use the
term “probation,” and even if he was under a probationary sentence,
he did not commit any part of the instant offense during his
probationary term. We disagree.
The district court did not err in concluding Sotelo’s
suspended sentence constituted a criminal justice sentence based on
the undisputed terms of the sentencing order. Moreover, even
though Sotelo’s indictment alleged he was found in the United
*
“Two points are added if the defendant committed any part of
the instant offense (i.e., any relevant conduct) while under any
criminal justice sentence,” including “unsupervised probation.”
USSG § 4A1.1(d) comment. (n.4).
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States in 2003, the court did not err in ruling that it was not
bound by the terms of the indictment when applying the guidelines
and concluding his reentry was relevant conduct for the instant
offense. The district court properly relied on Sotelo’s admission
that he reentered the United States during the two-year period.
Moreover, “[b]ecause the crime of being ‘found in’ the United
States is not complete until an alien is discovered by immigration
authorities, it is considered a ‘continuing offense.’” United
States v. Godinez-Rabadan, 289 F.3d 630, 632 (9th Cir. 2002)
(citations omitted).
Finally, Sotelo contends the district court committed
Sixth Amendment error under United States v. Booker, 543 U.S. 220(2005), and we should remand for resentencing under United
States v. Hughes, 401 F.3d 540 (4th Cir. 2005). Sotelo’s sentence
was imposed before Booker issued, and he did not raise objections
to his sentence in the district court based on the mandatory nature
of the sentencing guidelines or the district court’s application of
sentencing enhancements based on facts not admitted by him or found
by the jury beyond a reasonable doubt. We therefore review his
sentence for plain error. See Hughes, 401 F.3d at 546-60. Because
we conclude the district court was not required to resolve any
disputed facts about Sotelo’s prior conviction to reach its legal
conclusions under the sentencing guidelines, we find there was no
Sixth Amendment error. See United States v. Thompson, 421 F.3d 278- 4 -
(4th Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006); United
States v. Collins, 412 F.3d 515 (4th Cir. 2005).
The determination as to whether Sotelo’s prior felony
conviction categorically constituted sexual abuse of a minor was a
legal determination based on the definition of the offense that
inhered in the fact of conviction. Moreover, the district court
was not required to resolve any disputed facts in concluding
Sotelo’s two-year suspended sentence was a criminal justice
sentence and that Sotelo returned to the United States during the
two-year term. The terms of the sentencing order were undisputed,
and the district court’s construction of those terms and the
guidelines were legal conclusions. See Thompson, 421 F.3d at 285(neither Booker nor Shepard v. United States, 544 U.S. 13 (2005),
“transmogrify what have always been questions of law into questions
of fact”). Although the question of when Sotelo returned was a
factual question, Sotelo admitted the fact.
Even if the district court’s ruling that Sotelo committed
the instant offense during a criminal justice sentence constituted
a finding of disputed fact, there was no prejudice resulting from
the error. See United States v. Evans, 416 F.3d 298, 300 n.4 (4th
Cir. 2005). Without a reduction for acceptance of responsibility
or added criminal history points, Sotelo’s sentencing guideline
range would have been fifty-seven to seventy-one months in prison.
While the district court unwittingly committed plain error by
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imposing a sentence under the then-existing mandatory guidelines
regime, the district court expressly noted its conclusion that
Sotelo’s conduct properly fell within the guideline range. There
is thus no nonspeculative basis in the record for concluding Sotelo
was prejudiced by the error. See United States v. White, 405 F.3d
208 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).
Accordingly, we affirm. 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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