UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4492

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SILVANO TEJADA-CRUZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Louise W. Flanagan,

District Judge. (CR-03-369)

Submitted: June 10, 2005 Decided: June 27, 2005

Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Silvano Tejada-Cruz appeals the district court’s judgment

entered pursuant to his guilty plea to illegal reentry following

deportation, in violation of 8 U.S.C. §§ 1326(a), (b) (2000). On

appeal, Tejada-Cruz asserts that in applying the three-point

increase to his criminal history points, the district court engaged

in unconstitutional fact-finding, in violation of Blakely v.

Washington, 124 S. Ct. 2531 (2004). He does not challenge his

conviction on appeal. 

Because Tejada-Cruz did not object to the sentencing

range set forth in the Presentence Report (“PSR”) and adopted by

the district court, this court’s review of the district court’s

guideline calculation is for plain error. United States v. Olano,

507 U.S. 725, 732 (1993); United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005). Under the plain error standard, Tejada-Cruz

must show: (1) there was error; (2) the error was plain; and (3)

the error affected his substantial rights. Olano, 507 U.S. at 732-

34. Even when these conditions are satisfied, this court may

exercise its discretion to notice the error only if the error

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Id. at 736 (internal quotation marks

omitted). 

Because Tejada-Cruz is not challenging the fact of his

prior convictions or disputing a fact about the convictions, we
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conclude that the district court’s addition of three points to his

criminal history score based on the prior convictions and their

recency did not violate his Sixth Amendment rights. United States

v. Booker, 125 S. Ct. 738, 756 (2005) (reaffirming its holding in

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that “any fact

other than a prior conviction” must be admitted by the defendant or

proved to a jury); Shepard v. United States, 125 S. Ct. 1254, 1262

(2005) (recognizing the prior conviction exception post Booker, but

holding that Sixth Amendment protections apply to disputed facts

about a prior conviction).

Accordingly, because we find no error, we affirm TejadaCruz’s conviction and sentence. Olano, 507 U.S. at 732-34; Hughes,

401 F.3d at 547. 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