United States v. Ramirez-Arroyo ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4383
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MIGUEL RAMIREZ-ARROYO, a/k/a Ranferi S.
Arroyo,
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-04-361)
Submitted: February 17, 2006 Decided: March 14, 2006
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, 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Unpublished opinions are not binding precedent in this circuit.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:
Miguel Ramirez-Arroyo pled guilty to one count of illegal
reentry of a deported alien felon, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2000). He was found being in the country while
serving a state sentence for two drug crimes. The presentence
investigation report enhanced his sentencing guidelines offense
level based on a prior conviction and used the same conviction to
determine the criminal history category. Ramirez-Arroyo contends
the district court erred by “double counting” his conviction. He
further contends the district court erred by believing it did not
have discretion under the advisory guidelines to impose a sentence
concurrent rather than consecutive to the undischarged state
sentence. Finding no error, we affirm.
Although district courts must now apply the sentencing
guidelines as advisory, see United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005), courts “are not left with unguided and
unbounded sentencing discretion. Booker provides that they ‘must
consult those Guidelines and take them into account when
sentencing.’” United States v. Green, __ F.3d __, 2006 WL 267217,
*3 (4th Cir. Feb. 6, 2006) (quoting Booker, 543 U.S. at __, 125 S.
Ct. at 767). We find no error in the calculation of the offense
level or the criminal history category. United States v. Crawford,
18 F.3d 1173, 1180-81 (4th Cir. 1994) (using a prior conviction to
enhance the offense level and the criminal history category was a
- 2 -
proper application of the guidelines). We further find that under
the guidelines, it was proper for the district court to impose a
consecutive sentence. There is no evidence the district court
acted under the assumption that the guidelines were mandatory. In
fact, the district court made it clear at sentencing that the
guidelines were only advisory. It further listed those additional
factors under 18 U.S.C.A. § 3553(a)(West 2000 & Supp. 2005) it used
to determine the sentence.
Accordingly, we affirm the 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
- 3 -