United States v. Arias-Rodriguez , 179 F. App'x 195 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4280
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAMASO ARIAS-RODRIGUEZ,
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-02-245)
Submitted: April 19, 2006 Decided: May 15, 2006
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jeffrey B. Welty, Durham, 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Unpublished opinions are not binding precedent in this circuit.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:
Damaso Arias-Rodriguez appeals his conviction and
forty-eight-month sentence imposed after he pled guilty to
unlawfully reentering the United States after deportation following
his conviction for an aggravated felony (second-degree kidnapping
under North Carolina law), in violation of 8 U.S.C. § 1326(a),
(b)(2) (2000). We affirm.
Arias-Rodriguez challenges the validity of his guilty
plea, asserting that he did not understand the jury trial rights he
waived by pleading guilty pursuant to Fed. R. Crim. P. 11, because
the district court failed to inform him of his right to confront
and cross-examine witnesses against him and his right to counsel.
Allegations of Rule 11 violations are reviewed for plain error
where, as here, Arias-Rodriguez did not move to withdraw his guilty
plea in the district court. United States v. Martinez, 277 F.3d
517, 527 (4th Cir. 2002) (discussing standard of review). Our
review of the transcript of the plea hearing convinces us that the
district court’s omissions did not affect Arias-Rodriguez’s
substantial rights.
Next, citing United States v. Booker, 543 U.S. 220(2005), Arias-Rodriguez asserts that the district court sentenced
him in violation of the Sixth Amendment because the court applied
a sixteen-level enhancement under U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A)(ii) (2001), based upon his prior North Carolina
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second-degree kidnapping conviction that the district court
concluded was a crime of violence. We review this claim for plain
error. See United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005) (stating standard of review). Section 2L1.2(B)(ii)(II) of
the guidelines in effect at the time of Arias-Rodriguez’s
sentencing specifically stated that kidnapping was a “crime of
violence.” Because the prior conviction qualified as a “crime of
violence” as a matter of law, the district made a purely legal
determination in applying the § 2L1.2 enhancement. Accordingly,
the challenged enhancement does not trigger the Sixth Amendment
concerns addressed in Booker. See United States v. Cornelio-Pena,
435 F.3d 1279, 1288 (10th Cir. 2006); United States v. Thompson,
421 F.3d 278, 283-84 (4th Cir. 2005), cert. denied, 126 S. Ct. 1463(2006); see also United States v. Cheek, 415 F.3d 349, 352-53 (4th
Cir.) (stating that Booker expressly incorporates exception for
recidivism-based sentence enhancements), cert. denied, 126 S. Ct.
640 (2005).
Finally, Arias-Rodriguez asserts that his sentence
violates Booker because the district court sentenced him under a
mandatory sentencing guidelines scheme. We review this claim for
plain error. See United States v. White, 405 F.3d 208, 215 (4th
Cir.) (stating standard of review), cert. denied, 126 S. Ct. 668(2005). Although we held in White that treating the guidelines as
mandatory constitutes plain error, see id. at 216-17, our review of
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the record leads us to conclude that there is no nonspeculative
basis on which we could conclude that the district court would have
sentenced Arias-Rodriguez to a lower sentence had the court
proceeded under an advisory guidelines scheme. See id. at 223.
Thus, Arias-Rodriguez has failed to demonstrate that the plain
error in sentencing him under a mandatory guidelines scheme
affected his substantial rights.
Accordingly, we affirm Arias-Rodriguez’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
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