United States v. Gonzalez-Camacho

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4329
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE GONZALEZ-CAMACHO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:05-cr-00360)
Submitted: December 21, 2006 Decided: February 14, 2007
Before WILKINS, Chief Judge, and SHEDD and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Amy E. Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Gonzalez-Camacho appeals the sentence imposed by the
district court following his plea of guilty to illegal reentry into
the United States, see 8 U.S.C.A. § 1326(a) (West 2005). He
maintains that the district court erred in adding two points to his
criminal history score on the basis that Gonzalez-Camacho committed
the crime while on probation for a prior offense, see United States
Sentencing Guidelines Manual § 4A1.1(d) (2005). Finding no error,
we affirm.
I.
Gonzalez-Camacho entered the country illegally from Mexico in
1996. In October 2002, he was convicted of felony possession of
cocaine in North Carolina state court, and a sentence of probation
was imposed. Gonzalez-Camacho was removed from the United States
in December 2002.
Gonzalez-Camacho reentered the country in May 2004. On
April 5, 2005, he was arrested by North Carolina law enforcement
officers and charged with trafficking cocaine. His probation was
revoked on April 11, 2005. A federal grand jury subsequently
charged Gonzalez-Camacho with illegally reentering the country
“[o]n or about April 14, 2005,” J.A. 6, April 14 being the date
that an immigration agent visited Gonzalez-Camacho in jail.
Gonzalez-Camacho pleaded guilty to this offense.
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The presentence report (PSR) prepared by the probation office
calculated Gonzalez-Camacho’s guideline range as follows. To the
base offense level of 8, the PSR added four levels for Gonzalez-
Camacho’s previous drug felony. See U.S.S.G. § 2L1.2(a),
(b)(1)(D). The PSR then subtracted two levels for acceptance of
responsibility, see U.S.S.G. § 3E1.1(a), resulting in a final
offense level of 10. The PSR calculated Gonzalez-Camacho’s
criminal history score as 6 and then added two levels on the basis
that he was serving a term of probation “[a]t the time the instant
offense was committed.” J.A. 32. The resulting criminal history
score of 8 placed Gonzalez-Camacho in Criminal History Category IV
which, combined with the offense level of 10, resulted in an
advisory guideline range of 15 to 21 months imprisonment.
Gonzalez-Camacho objected to the PSR, asserting that the
addition of two points under § 4A1.1(d) was improper because the
offense, as alleged in the indictment, was committed on April 14,
after his probation was revoked on April 11. The district court
rejected this argument, characterizing illegal reentry as “a
continuing offense,” that was surely being committed on April 5,
when Gonzalez-Camacho was arrested. J.A. 13. The court imposed a
sentence of 15 months imprisonment.
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II.
Gonzalez-Camacho maintains that the sentence imposed by the
district court violates the Sixth Amendment. We disagree.
In United States v. Booker, 543 U.S. 220, 244 (2005), the
Supreme Court held that the Sixth Amendment right to a jury trial
is violated when the district court, acting pursuant to a mandatory
guidelines system, imposes a sentence greater than the maximum
authorized by the facts admitted by the defendant or found by the
jury. Gonzalez-Camacho maintains that the sentence imposed by the
district court violated this principle because the grand jury did
not charge, and he did not admit, that his reentry was a continuing
offense that began before the April 11, 2005 revocation of his
probation.
This argument fails. Under Gonzalez-Camacho’s reasoning, he
would have been assigned only six criminal history points, placing
him in category III. This Criminal History Category, combined with
an offense level of 12, see United States v. Evans, 416 F.3d 298,
300 n.4 (4th Cir. 2005), would have resulted in a guideline range
of 15-21 months imprisonment. As noted previously, the district
court sentenced Gonzalez-Camacho to 15 months. Therefore, because
the sentence did not exceed the maximum authorized by the facts
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charged in the indictment and admitted by Gonzalez-Camacho,
Gonzalez-Camacho’s Sixth Amendment rights were not violated.*
III.
For the reasons set forth above, we affirm Gonzalez-Camacho’s
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
*
Gonzalez-Camacho does not argue that the district court
improperly calculated the guideline range, a non-constitutional
error that might also entitle him to reversal of his sentence.
See United States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006) (holding that under post-Booker
advisory guidelines regime, “[a]n error of law, such as
incorrectly identifying the applicable guideline range, can render
a sentence unreasonable” (internal quotation marks omitted)). In
any event, such a claim would be without merit because illegal
reentry is a continuing offense that begins when a previously
removed alien enters the country and continues until he is found
by immigration officials. See United States v. Reyes-Nava, 169
F.3d 278, 280 (5th Cir. 1999) (per curiam) (affirming enhancement
under § 4A1.1(d) when defendant had served two prison terms
between reentering the United States and being discovered by
immigration officials).
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