United States v. Diaz-Rueda ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4592
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERTO DIAZ-RUEDA, a/k/a Roberto Diaz,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00043)
Submitted: March 29, 2007 Decided: April 3, 2007
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leonard G. Kornberg, Charlotte, North Carolina, for Appellant.
Kenneth Michel Smith, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roberto Diaz-Rueda pled guilty to one count of illegal
re-entry into the United States by a previously deported felon, in
violation of 8 U.S.C. §§ 1326(a), (b)(2) (2000). The district
court sentenced Diaz-Rueda to fifty-seven months’ imprisonment and
two years of supervised release.* Diaz-Rueda’s counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal, but
questioning whether the district court erred in penalizing Diaz-
Rueda three times for the same conviction. Specifically, he notes
that Diaz-Rueda was convicted of the cocaine trafficking offense
which formed the basis for his deportation, then he was assessed a
sixteen-level increase to his base offense level based on the same
conviction, and also received three criminal history points for the
same conviction, resulting in an increase to his criminal history
category from III to IV. Diaz-Rueda was given an opportunity to
file a pro se brief, but has failed to do so.
In reviewing Diaz-Rueda’s issue on appeal, we find no
error. As we have held before, a district court properly may use
*
The probation officer calculated an advisory sentencing
guideline range of fifty-seven to seventy-one months’ imprisonment
founded on an offense level of twenty-one and a criminal history
category of IV, after a sixteen-level increase to Diaz-Rueda’s base
offense level of eight, pursuant to U.S. Sentencing Guidelines
Manual,(“USSG”) § 2L1.2(b)(2)(A)(I) (2004), and a three-level
reduction for acceptance of responsibility, pursuant to USSG
§§ 3E1.1(a), (b).
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a prior conviction to enhance the offense level and the criminal
history category. See United States v. Crawford, 18 F.3d 1173,
1180-81 (4th Cir. 1994). Moreover, the district court properly
“consult[ed the] Guidelines and [took] them into account when
sentencing,” United States v. Booker, 543 U.S. 220, , 125 S.
738, 767 (2005), it made all the factual findings appropriate for
that determination, considered the sentencing range along with the
other factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2006), and imposed a sentence that was “within the statutorily
prescribed range and . . . reasonable.” United States v. Hughes,
401 F.3d 540, 546-47 (4th Cir. 2005); see also United States v.
Green, 436 F.3d 449, 456-57 (4th Cir. 2006) (finding a sentence
within a properly calculated advisory range to be presumptively
reasonable). Given these facts, we find to be reasonable the
district court’s sentence at the low end of a properly calculated
advisory guidelines range.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Diaz-Rueda’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, then
counsel may move in this court for leave to withdraw from
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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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