United States v. Moreno-Deleon , 197 F. App'x 277 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5017
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILSON REYNALDO MORENO-DELEON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-04-212)
Submitted: July 31, 2006 Decided: September 5, 2006
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary E. Maguire, Meghan S. Skelton, Assistant Federal Public
Defenders, Richmond, Virginia, for Appellant. Michael J. Elston,
Michael C. Wallace, Sr., Assistant United States Attorneys,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wilson Moreno-Deleon appeals his fifty-seven-month
sentence imposed after pleading guilty to one count of violating 8
U.S.C. § 1326(b)(4) (2000), returning to the United States after
having been deported. We affirm.
Citing United States v. Booker, 543 U.S. 220 (2005),
Moreno-Deleon 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) (2003), based upon his prior North Carolina
second-degree kidnapping conviction that the district court
concluded was a crime of violence for sentencing purposes. We
review this claim for harmless error because Moreno-Deleon objected
to the enhancement at sentencing based on Blakely v. Washington,
542 U.S. 296 (2004). See United States v. Rodriguez, 433 F.3d 411,
415-16 (4th Cir. 2006) (stating standard of review).
Commentary to the relevant sentencing guideline in effect
at the time of Moreno-Deleon’s sentencing specifically states that
kidnapping is a “crime of violence.” USSG § 2L1.2, comment.
(n.1(B)(iii)). Because the prior conviction qualified as a “crime
of violence” as a matter of law, the district court 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.
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Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir.), cert. denied, 126
S. Ct. 2366 (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
sentencing enhancements), cert. denied, 126 S. Ct. 640 (2005).
Moreno-Deleon also argues that his sentence violates the
Sixth Amendment based on the district court’s determination of
criminal history points. He argues that the district court had to
make factual findings to determine that he was eligible for
additional points under USSG § 4A1.1(d) for committing the offense
while under a criminal justice sentence and USSG § 4A1.1(e) for
committing the offense less than two years after release from
imprisonment. There is no constitutional error where the district
court makes legal determinations to calculate a criminal history
score. Moreno-Deleon’s claim is foreclosed by circuit precedent.
See Thompson, 421 F.3d at 286 (holding that prior convictions could
not be severed from their essential components, including integral
facts such as the statutory violation and date of offense, and that
these facts were inherent to convictions, not extraneous to them);
Cheek, 415 F.3d at 350 (holding that defendant’s Sixth Amendment
right to trial by a jury was not violated by district court’s
reliance on his prior convictions for purposes of sentencing under
the Armed Career Criminal Act). Moreover, on appeal, Moreno-Deleon
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does not challenge any factual findings regarding the prior
convictions, and he does not dispute the factual basis for the
probation officer’s and district court’s assessment of points under
USSG § 4A1.1. Accordingly, Moreno-Deleon’s assertion that his
sentence violates the Sixth Amendment is without merit. See United
States v. Collins, 412 F.3d 515, 523 (4th Cir. 2005) (holding that,
where defendant did not dispute any of the facts supporting the
career offender status in district court, there is no constitutional
violation in relying on defendant’s prior convictions).
Finally, Moreno-Deleon asserts that his sentence violates
Booker because the district court sentenced him under a mandatory
Sentencing Guidelines scheme. In United States v. White, 405 F.3d
208, 215 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005), this
court held that treating the guidelines as mandatory was error and
that the error was plain. 405 F.3d at 216-17. The court declined
to presume prejudice, id. at 217-22, and held that the “prejudice
inquiry, therefore, is . . . whether after pondering all that
happened without stripping the erroneous action from the whole,
. . . the judgment was . . . substantially swayed by the error.”
Id. at 223 (internal quotation marks and citations omitted). In
Rodriguez, we held that a defendant who makes an objection at
sentencing based on Blakely has preserved his claim of statutory
error (mandatory application of the guidelines) under Booker.
Rodriguez, 433 F.3d at 415. The appeals court is thus obliged to
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review his claim de novo; consequently, the government has the
burden of showing harmless error. Id.In this case, the district court clearly announced that
it would impose the same sentence in this case if the guidelines
were treated as advisory. See White, 405 F.3d at 224. Given the
identical alternative sentence, the Government can show that the
error in treating the guidelines as mandatory did not affect
Moreno-Deleon’s substantial rights. See id. at 223 (noting that
substantial rights inquiry is the same under plain or harmless
error and that only difference is who bears burden of proof); see
also United States v. Shatley, 448 F.3d 264, 267-68 (4th Cir. 2006)
(holding a Sixth Amendment error harmless because the district
court announced an identical alternate sentence after considering
the Guidelines as advisory only and thus the error did not affect
the outcome of the proceeding). Because the district court imposed
an identical discretionary alternative sentence, the Government has
proven that Moreno-Deleon’s substantial rights were not violated.
Accordingly, we affirm Moreno-Deleon’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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