United States v. Reza , 142 F. App'x 694 ( 2005 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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
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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
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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