United States v. Cisneros-Aguilar , 151 F. App'x 239 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4450
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIO CISNEROS-AGUILAR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-463)
Submitted: July 29, 2005 Decided: October 11, 2005
Before LUTTIG, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Angela H. Miller, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a plea agreement, Mario Cisneros-Aguilar pled
guilty to illegal reentry by a deported alien after conviction of
an aggravated felony, in violation of 8 U.S.C. § 1326(a) & (b)(2)
(2000). The district court sentenced Cisneros-Aguilar under the
Federal Sentencing Guidelines to fifty-seven months in prison.
Cisneros-Aguilar timely appealed, challenging the district court’s
calculation of his criminal history score. We affirm.
Cisneros-Aguilar contends that his sentence is
unconstitutional in light of Blakely v. Washington, 542 U.S. 296(2004). Because he did not raise this issue in the district court,
his claim is reviewed for plain error. Fed. R. Crim. P. 52(b);
United States v. Harp, 406 F.3d 242, 247 (4th Cir. 2005). To
demonstrate plain error, a defendant must establish that error
occurred, that it was plain, and that it affected his substantial
rights. United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.
2005). If the defendant establishes these requirements, the court
may exercise its discretion to notice the error “only when failure
to do so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 555 (internal quotation marks and citation omitted).
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that the mandatory manner in which the Federal
- 2 -
Sentencing Guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. Id. at 746, 750(Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by making the Guidelines advisory through
the removal of two statutory provisions that had rendered them
mandatory. Id. at 746 (Stevens, J. opinion of the Court); id. at
756-57 (Breyer, J., opinion of the Court).
In calculating Cisneros-Aguilar’s criminal history score,
the district court assigned five criminal history points based upon
prior convictions, two criminal history points based upon the
court’s finding that he committed the instant offense while on
parole, and one point based upon the court’s finding that he
committed the instant offense within two years of being released
from prison on another offense. U.S. Sentencing Guidelines Manual
§ 4A1.1 (2003).
Regarding his criminal history points for prior
convictions, Cisneros-Aguilar argues that the factual findings
required to determine whether particular convictions are countable
and how many points are assessed involve more than the mere fact of
a prior conviction and therefore are subject to the requirements of
Blakely. In Almendarez-Torres v. United States, 523 U.S. 224, 233-
35 (1998), the Supreme Court held that the government need not
allege in its indictment and need not prove beyond reasonable doubt
- 3 -
that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence. Although
the opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000),
expressed some uncertainty regarding the future vitality of
Almendarez-Torres, this court has subsequently confirmed that
Almendarez-Torres was not overruled by Apprendi, and remains the
law. United States v. Cheek, 415 F.3d 349 (4th Cir. 2005); see
United States v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002); see
generally Shepard v. United States, 125 S. Ct. 1254 (2005)
(discussing documents that a sentencing court may consider in
determining whether a prior conviction is considered a violent
felony).
Turning to the three criminal history points assessed
because Cisneros-Aguilar committed the instant offense while on
parole and within two years of his release from prison, the
determination of these facts was not necessary in order for
Cisneros-Aguilar to receive his sentence, and so no Sixth Amendment
error occurred. To determine the guideline range free of judicial
enhancements, this court uses the defendant’s “guideline range
based on the facts he admitted before adjusting that range for
acceptance of responsibility.” United States v. Evans, 416 F.3d
298, 300 n.4 (4th Cir. 2005). Thus, in this case, Cisneros-
Aguilar’s offense level without the three-level adjustment for
acceptance of responsibility would be 24. Excluding the three
- 4 -
erroneous criminal history points, Cisneros-Aguilar would have five
criminal history points, placing him in criminal history category
III. The guideline range for offense level 24 and criminal history
category III is sixty-three to seventy-eight months imprisonment.
USSG Ch. 5, Pt. A (Sentencing Table). Because Cisneros-Aguilar’s
fifty-seven month sentence does not exceed the maximum sentence
authorized by the facts he admitted, we find that no Sixth
Amendment error occurred and consequently, the district court did
not plainly err in sentencing Cisneros-Aguilar.* Evans, 416 F.3d
at 300-01.
For the reasons stated, we affirm Cisneros-Aguilar’s
conviction and sentence. 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
*
Even if Cisneros-Aguilar’s offense level included the three-
level reduction for acceptance of responsibility, his guideline
range for offense level 21 and criminal history category III would
be forty-six to fifty-seven months in prison. Therefore, his
fifty-seven month sentence would “not exceed the maximum authorized
by the facts he admitted.” Evans, 416 F.3d at 300 n.4.
- 5 -