United States v. Perez ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4049
ANIBAL A. PEREZ, a/k/a Herlindo
Blanco,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-99-2)
Submitted: August 29, 2000
Decided: October 10, 2000
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Victoria S. Gonzalez, GONZALEZ & ASSOCIATES, Charlotte,
North Carolina, for Appellant. Mark T. Calloway, United States
Attorney, Kenneth M. Smith, Assistant United States Attorney, Char-
lotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Anibal A. Perez appeals his conviction entered on his guilty plea
to uttering forged securities in violation of 18 U.S.C. § 513(a) (1994),
producing a false identification document in violation of 18 U.S.C.
§ 1082(a)(1) (1994), and unlawfully re-entering the United States
after deportation in violation of 8 U.S.C. § 1326(a) (1994). On appeal,
Perez contends that the district court erred in failing to consider sua
sponte a downward departure based on the nature of the aggravated
felony which triggered a sixteen level increase in Perez's calculated
Offense Level. See USSG § 2L1.2(b)(1)(A). Perez also suggests that
the district court erred in its assessment of the amount of loss attribut-
able to him as relevant conduct for sentencing purposes. Finding no
merit to either of these claims, we affirm Perez's conviction and sen-
tence.
As a threshold matter, our review of Perez's claim that the district
court erred in failing to consider a downward departure is limited to
a search for plain error by the fact that Perez did not advance this
argument before the district court. See United States v. Olano, 507
U.S. 725, 733-34 (1993); United States v. Brewer , 1 F.3d 1430, 1434
(4th Cir. 1993). No error of this magnitude is present in this case
because there is no suggestion that the district court was laboring
under the mistaken belief that it lacked the authority to depart down-
ward. Cf. United States v. Castillo-Casiano, 198 F.3d 787, 791 (9th
Cir. 1999), amended, 204 F.3d 1257 (9th Cir. 2000). Likewise, we
conclude that there was no clear error in the district court's calcula-
tion of the amount of loss attributable to Perez as relevant conduct.
See United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). The
record, including the presentence report and Perez's own testimony at
sentencing, contained sufficient evidence to show that the amount of
loss contained in the presentence report was "part of the same course
of conduct or common scheme or plan as the offense of conviction."
United States v. Mullins, 971 F.2d 1138, 1143-44 (4th Cir. 1992).
2
Neither of Perez's arguments on appeal convince us that the district
court committed error at sentencing. Accordingly, Perez's conviction
and sentence are affirmed. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
3