US v. Arias-Rodriguez, No. 04-4280 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4280 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DAMASO ARIAS-RODRIGUEZ, Defendant -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 District of North Carolina, at Durham. District Judge. (CR-02-245) Court for the Middle James A. Beaty, Jr., Submitted: Decided: April 19, 2006 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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 forty-eight-month sentence appeals imposed after his he conviction pled guilty and 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 - 2 - second-degree kidnapping conviction concluded was a crime of violence. error. that the district court We review this claim for plain 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 time guidelines in effect at the 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. plain error. We review this claim for 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 - 3 - 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 proceeded under an advisory guidelines scheme. had the court 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 - 4 -

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