UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4499

RIGOBERTO MALDONADO-VENCES,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Frank W. Bullock, Jr., Chief District Judge.

(CR-98-5)

Submitted: November 30, 1998

Decided: December 31, 1998

Before MURNAGHAN, MOTZ, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, William S. Trivette,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Walter C. Holton, Jr., United States Attorney, David P.

Folmar, Jr., Assistant United States Attorney, Jason Moss, Third Year

Law Student, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Rigoberto Maldonado-Vences appeals the district court's judgment

convicting him of illegal re-entry into the United States in violation

of 8 U.S.C.A. § 1326(a) & (b)(2) (West 1970 & Supp. 1998). Appellant's attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), certifying that the appeal does not present any meritorious issues but raising one issue: whether the court abused its discretion by sentencing Appellant to 52 months' imprisonment.

Appellant has filed a pro se supplemental brief contending that he

should receive a reduced sentence because he was not informed of the

opportunity to contact the Mexican Consulate upon his arrest. Finding

no reversible error, we affirm.

At the plea hearing, the court properly determined that Appellant

was competent to enter a plea, that he understood the charge against

him and the maximum and minimum sentence and fine. Appellant

was informed that the court was obligated to consider the applicable

sentencing guidelines. In addition, Appellant was informed of the

rights he was waiving by entering a guilty plea. The court also

reviewed the plea agreement. Appellant stated that he was not promised anything other than what was in the plea agreement, nor was he

forced to accept the terms of the agreement. Finally, the district court

properly found a sound factual basis for accepting the guilty plea.

The presentence investigation report ("PSI") correctly stated that

Appellant's base offense level was 8. See U.S. Sentencing Guidelines

Manual § 2L1.2(a) (1997). The base offense level was increased 16

levels because he was previously deported after a conviction of an

aggravated felony. See USSG § 2L1.2(b). Pursuant to the plea agreement, Appellant received a 3-level offense level reduction for acceptance of responsibility. He was placed in criminal history category III.

The Sentencing Guidelines range was 46 to 57 months' imprisonment.

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At sentencing, the court adopted the PSI's findings and recommendations without objection from Appellant. After Appellant made a

brief statement in mitigation, the court sentenced Appellant to 52

months' imprisonment and three years supervised release. Despite

Appellant's contention that his sentence is too severe, this court does

not have jurisdiction to review a sentence which is within the correct

guideline range. See United States v. Porter, 909 F.2d 789, 794 (4th

Cir. 1990).

In his pro se supplemental brief, Appellant asserts that the arresting

authorities failed to notify him that, as a foreign national, he had the

right to contact1 the Consulate of Mexico pursuant to the Vienna Convention on Consular Relations, opened for signature Apr. 24, 1963,

21 U.S.T. 77 (ratified by the United States Nov. 12, 1969).2 Our

review is for plain error because Appellant did not raise this claim in

the district court. See United States v. Olano , 507 U.S. 725, 731-32

(1993).

We note initially that Appellant's voluntary guilty plea waives all

prior nonjurisdictional defects. See Tollett v. Henderson, 411 U.S.

258, 267 (1973). In addition, the failure to inform Appellant of his

rights under the treaty is not a denial of his constitutional rights. See

Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir.), cert. denied, ___

U.S. ___, 66 U.S.L.W. 3193 (U.S. Sept. 12, 1997) (No. 97-5808).

Furthermore, Appellant fails to show how he was prejudiced by the

alleged treaty violation. See generally United States v. RangelGonzales, 617 F.2d 529, 532-33 (9th Cir. 1980). Nor is there any indication that Appellant has attempted to contact his consulate since his

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1 Under the treaty, an arrestee who is also a foreign national shall be

informed of his right to contact his consulate. See Faulder v. Johnson,

81 F.3d 515, 520 (5th Cir. 1996).

2 A similar claim was raised in Breard v. Pruett, 134 F.3d 615 (4th

Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3684 (U.S. Apr. 14, 1998)

(Nos. 97-8214 (A-732), 97-1390 (A-738), 97-8660 (A-767)). However,

that case is not dispositive of Appellant's claim. In Breard, this court

denied habeas corpus relief because Breard did not show cause for failing to raise the alleged treaty violation in state court or a miscarriage of

justice. See Breard, 134 F.3d at 620.

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arrest and conviction. Appellant contends that had he contacted the

Mexican Consolute he would have been advised by the consulate not

to make statements to the police and he would have been provided

with a competent attorney. Appellant fails to show that statements he

made to the police prejudiced his defense. He also fails to show based

on the record before us that his appointed counsel was ineffective.

Accordingly, we do not find plain error.

Pursuant to the requirements of Anders, this court has reviewed the

record for potential error and has found none. Therefore, we affirm

Appellant's conviction and sentence. We deny counsel's motion to

withdraw without prejudice to renewal. 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 this court for leave to withdraw

from 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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