Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-2654

UNITED STATES OF AMERICA,

Appellee,

v.

HECTOR CASTRO-POLANCO,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, Chief U.S. District Judge]

Before

 Selya, Lynch, and Howard, Circuit Judges.

Evelyn Canals-Lozada, Assistant United States Attorney, and

Nelson J. Perez-Sosa, United States Attorney, on brief for

appellee.

Victor González-Bothwell, Assistant Federal Public Defender,

and Joseph C. Laws, Jr., Federal Public Defender, on brief for

defendant, appellant.

June 2, 2006
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Per Curiam. Appellant Hector Castro-Polanco, a citizen of

the Dominican Republic, pled guilty (without a plea agreement) to

one count of re-entering the United States after removal subsequent

to the commission of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a)(2) and (b). Because he was sentenced after the Supreme

Court's decision in United States v. Booker, 543 U.S. 220 (2005),

the sentencing guidelines were advisory rather than mandatory. In

calculating the guideline range, the sentencing court applied a 16-

level increase to the base offense level, pursuant to U.S.S.G. §

2L1.2(b)(1)(A), and arrived at an imprisonment range of 46 to 57

months. Defense counsel requested a sentence below that range,

based on the defendant's mental impairment. The court, treating

the guidelines as purely advisory, imposed a sentence of 46 months,

for which it gave a "reasoned explanation." United States v.

Jiménez-Beltre, 440 F.3d 514 (1 Cir. 2006). st

Counsel for appellant has filed a motion to withdraw and

a brief pursuant to Anders v. California, 386 U.S. 738 (1967).

Appellant has filed a supplemental pro se brief. For the reasons

stated below, and after a full examination of the record, we

conclude that this appeal presents no non-frivolous issues.

I. Issue Raised in Anders Brief

The sole issue identified in the Anders brief as a

potential appellate issue is the reasonableness of the sentence.

Specifically, that brief identifies the issue of whether the
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district court was unreasonable in failing to vary downwards from

the guidelines based on Castro-Polanco's alleged mental impairment.

In reviewing unreasonableness claims, this court emphasizes "the

provision of a reasoned explanation, a plausible outcome and -

where these criteria are met - some deference to different

judgments by the district judges on the scene. . . . Assuming a

plausible explanation and a defensible overall result, sentencing

is the responsibility of the district court." Jiménez-Beltre, 440

F.3d at 519. Here, the sentencing court gave a reasoned

explanation both for imposing a sentence at the bottom of the

guideline range, and for failing to vary below that range on the

ground of defendant's alleged mental impairment.

The district court expressly found that a variance from

the guidelines based upon "impairment of capacity" was not

warranted. Underlying that determination was the court's

supportable finding that defendant's mental impairment had not

substantially contributed to his commission of the illegal re-entry

offense. The court also explained its sentence with reference to

the factors to be considered pursuant to 18 U.S.C. § 3553(a).

Specifically, the court cited the need for the sentence imposed to

"reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense," id. § 3353

(a)(2)(A), and "to provide the defendant with needed . . . medical

care, or other correctional treatment in the most effective
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manner." Id. § 3553(a)(2)(D). The court noted that defendant had

been a "habitual offender" and had a "proclivity for recidivism."

In explaining the sentence imposed, the court noted the need to

"appropriately address the issue of recidivism," and for defendant

to be "confined in a . . . structured environment," and provided

with "medical and psychiatric care and other correctional

treatment." Id. 

We agree with appellant's counsel that there is no nonfrivolous argument that the sentence imposed was unreasonable.

II. Issues Raised in Pro Se Brief

Castro-Polanco challenges the sentencing court's 16-

level enhancement to his base offense level for prior conviction of

a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A). In

determining that the conviction which preceded deportation (a

Maryland state conviction for second-degree assault) constituted a

"crime of violence," the sentencing court did not appear to have

examined the elements of the Maryland statute of which defendant

was convicted. Nor did it rely directly upon the court documents

which it is permitted to consider under Taylor v. United States,

495 U.S. 575, 602 (1990) and Shepard v. United States, 544 U.S. 13,

125 S. Ct. 1254, 1263 (2005). Instead, the court appeared to have

relied upon the characterization of the Maryland conviction as a

"crime of violence" contained in the presentence investigation
 The remaining issues raised in the pro se brief are clearly 1

frivolous.

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report (PSR) and upon the PSR's factual description (based upon

"court documents") of the underlying offense.

Castro-Polanco did not object at sentencing to the 16-

level enhancement. Therefore, at best, we review only for plain

error. See United States v. Mastera, 435 F.3d 56, 61 (1 Cir. st

2006). Castro-Polanco's challenge fails under the third and fourth

prongs of the plain error test. He has not met his burden of

showing either that the alleged error affected his substantial

rights or seriously impaired the fairness, integrity, or public

reputation of judicial proceedings. Castro-Polanco did not object

to the PSR's factual description of his Maryland offense. Nor does

he even argue in his pro se brief that the Maryland conviction was

for a non-violent offense. The PSR states that the source of the

factual description is court documents. Nothing in this record

suggests that the nature of the actual offense would be so

different from the PSR's description that it would not qualify as

a crime of violence for enhancement purposes. We conclude that

there is no non-frivolous argument that the sentencing court

committed plain error in applying a 16-level enhancement to

calculate the advisory guideline sentence in this case.1

Counsel's motion to withdraw is granted, and appellant's

conviction and sentence are affirmed. See 1 Cir. R. 27(c). st