UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4914

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MIGUEL ANGEL BANOS-OLMEDO,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. William L. Osteen, District

Judge. (CR-03-224)

Submitted: June 22, 2005 Decided: July 19, 2005

Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Clifton T. Barrett, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

We note that following United States v. Booker, 125 S. Ct.

738 (2005), we granted Banos-Olmedo an opportunity to file a

supplemental brief, but his attorney declined to do so “since

Appellant has completed his confinement and has been deported to

Mexico, and given the lack of meritorious issues.” We further note

that Banos-Olmedo admitted the facts underlying the enhancements

either at his plea hearing or at sentencing, see United States v.

Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005), and the district

court denied his request to depart downward based on his injuries

because they were “his own doing.” Thus, even if Banos-Olmedo

asserted error by the district court in failing to treat the

guidelines as advisory, we find there is no nonspeculative basis in

the record for concluding the error was prejudicial. See United

States v. White, 405 F.3d 208, 225 (4th Cir. 2005).

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PER CURIAM:

Miguel Angel Banos-Olmedo, a native and citizen of

Mexico, appeals his conviction and sentence to twenty-seven months

in prison and two years of supervised release following his guilty

plea to possession of a firearm by an alien illegally in the United

States in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2) (2000).

Banos-Olmedo’s attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting there are no meritorious

grounds for appeal but raising the issue of whether the district

court erred by “double counting” when applying both a four-level

enhancement under United States Sentencing Guidelines Manual

(“USSG”) § 2K2.1(b)(5) (2002) for using the firearm in connection

with another felony and a three-level enhancement under USSG

§ 3A1.2(b) for assaulting a law enforcement officer.* Banos-Olmedo

has been informed of his right to file a pro se supplemental brief
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but has not done so. Finding no meritorious issues and no

reversible error by the district court, we affirm.

“It is well established that ‘[t]he Sentencing Commission

plainly understands the concept of double counting, and expressly

forbids it where it is not intended.’” United States v. Schaal,

340 F.3d 196, 198 (4th Cir. 2003) (quoting United States v.

Williams, 954 F.2d 204, 208 (4th Cir. 1992)). Double counting is

permissible under the federal sentencing guidelines except where it

is expressly prohibited. Id.; United States v. Wilson, 198 F.3d

467, 472 n.* (4th Cir. 1999). Because the guidelines do not

expressly prohibit double counting in this case, the district court

did not err by applying both enhancements. See id.; United

States v. Jackson, 276 F.3d 1231 (11th Cir. 2001).

In accordance with Anders, we have reviewed the entire

record in this case and found no meritorious issues for appeal. We

therefore affirm Banos-Olmedo’s conviction and sentence. This

court requires that counsel inform his client, in writing, of his

right to petition to 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 in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on the client.
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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