United States v. Hernandez-Gonzalez , 200 F. App'x 225 ( 2006 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4085
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    MARIO HERNANDEZ-GONZALEZ, a/k/a Alex Cruz,
    a/k/a Mario Hernandez, a/k/a Mario Gonzalez-
    Hernandez,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
    District Judge. (3:05-cr-00271-ALL)
    Submitted:   August 23, 2006            Decided:   September 14, 2006
    Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
    Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
    United States Attorney, Douglas Scott Broyles, Assistant United
    States Attorney, Charlotte, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Mario Hernandez-Gonzalez pled guilty to illegal reentry
    of an aggravated felon after deportation, in violation of 
    8 U.S.C. § 1326
    (a), (b)(2) (2000).     He was sentenced to forty-one months’
    imprisonment.     Hernandez-Gonzalez’ attorney has filed a brief in
    accordance with Anders v. California, 
    386 U.S. 738
     (1967), stating
    that in her opinion there are no meritorious issues for appeal, but
    raising as potential issues whether the district court erred by
    accepting Hernandez-Gonzalez’ guilty plea without ensuring it was
    knowingly and voluntarily entered and that there was a factual
    basis for the plea, and by enhancing Hernandez-Gonzalez’ offense
    level sixteen levels on the basis of a prior conviction that was
    not charged in his indictment.      Hernandez-Gonzalez was notified of
    his right to file a pro se supplemental brief, but has not done so.
    Finding no reversible error, we affirm.
    Hernandez-Gonzalez’ counsel argues that the district
    court erred in accepting Hernandez-Gonzalez’ guilty plea without
    ensuring that there was a sufficient factual basis for finding that
    he had been deported after obtaining a conviction for an aggravated
    felony and that his plea was knowingly and voluntarily entered, in
    violation of Fed. R. Crim. P. 11.        Because Hernandez-Gonzalez did
    not seek in the district court to withdraw his guilty plea, his
    allegations of Rule 11 error are reviewed for plain error.               See
    United   States   v.   Martinez,   
    277 F.3d 517
    ,   525-26   (4th   Cir.
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    2002)(holding that “plain error analysis is the proper standard for
    review of forfeited error in the Rule 11 context”).                      Under plain
    error review, this court may only notice an error that was not
    preserved by timely objection if the defendant can demonstrate:
    (1) that an error occurred, (2) that the error was plain, and
    (3)    that    the      error   was   material     or   affected   the    defendant’s
    substantial rights.             United States v. Olano, 
    507 U.S. 725
    , 731-32
    (1993).       Even when these three conditions are satisfied, the court
    should only correct the error if it seriously affects the fairness,
    integrity, or public reputation of judicial proceedings.                      
    Id. at 732
    .
    Prior to accepting a guilty plea, the trial court must ensure
    the defendant understands the nature of the charges against him,
    the mandatory minimum and maximum sentences, and other various
    rights,       so   it    is   clear   that   the   defendant   is   knowingly     and
    voluntarily entering his plea, and determine whether there is a
    factual basis for the plea.             Fed. R. Crim. P. 11(b)(1),(3); United
    States v. DeFusco, 
    949 F.2d 114
    , 116, 120 (4th Cir. 1991).                      After
    a thorough review of the record, we find a proper Rule 11 colloquy
    was conducted.
    Hernandez-Gonzalez also claims that the district court
    erred when it enhanced his sentence sixteen levels using a prior
    conviction that was not charged in his indictment.                       However, the
    government need not allege in its indictment and need not prove
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    beyond reasonable doubt that a defendant had prior convictions for
    a district court to use those convictions for purposes of enhancing
    a sentence.    Almendarez-Torres v. United States, 
    523 U.S. 224
    , 246
    (1998).   U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2004)
    applies a sixteen-level enhancement if the defendant was previously
    deported after a “crime of violence,” defined in the commentary to
    include   an     “aggravated   assault.”   USSG   §   2L1.2,   comment
    (n.1(B)(iii)).    In 2002, Hernandez-Gonzalez was convicted in North
    Carolina of assault with a deadly weapon with intent to kill and he
    was subsequently deported.     We therefore find the district court
    did not err in applying the sixteen-level enhancement.
    Pursuant to Anders, we have examined the entire record
    and find no meritorious issues for appeal.    Accordingly, we affirm
    Hernandez-Gonzalez’ conviction and sentence.      This court requires
    that counsel inform her 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, then 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. 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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