UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4530

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

AMADO ANTONIO CARTAGENA,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Frank D. Whitney,

District Judge. (3:06-cr-00153)

Submitted: January 25, 2008 Decided: February 22, 2008

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for

Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES

ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
- 2 -

PER CURIAM:

Amado Antonio Cartagena pled guilty without a plea

agreement to unlawful reentry into the United States by a deported

alien, in violation of 8 U.S.C. § 1326(a), (b)(2) (2000), and was

sentenced to eighty months in prison. Cartagena timely appealed.

Cartagena’s attorney filed a brief in accordance with Anders v.

California, 386 U.S. 739 (1967), certifying that there are no

meritorious grounds for appeal, but questioning whether the

district court abused its discretion by not imposing a lower

sentence. The Government did not file a reply brief. Cartagena

was advised of his right to file a pro se supplemental brief, but

has not done so. Finding no reversible error, we affirm.

Cartagena suggests in a conclusory fashion that his

guilty plea and conviction are invalid. Cartagena agreed that

there was a factual basis to support his plea. The magistrate

judge followed Fed. R. Crim. P. 11 to ensure that Cartagena fully

understood the significance of his guilty plea and that the plea

was knowing and voluntary. Cartagena stated that he was of sound

mind and was not under the influence of drugs or alcohol, fully

understood the charges against him, and had discussed his charges

and potential sentence with his attorney. He agreed that if his

sentence was more severe than he expected, he was still bound by

his plea and would not be permitted to withdraw it. Cartagena also

agreed that no one had promised him a particular sentence and no
- 3 -

one had forced him to plead guilty. The magistrate judge found

Cartagena’s plea was knowing and voluntary, and accepted the plea

of guilty.

At sentencing, the district court again questioned

Cartagena about the validity of his plea. Cartagena agreed that

his answers to the magistrate judge were true, that he understood

the court’s questions, and that he was indeed guilty of the crime

of illegal reentry of a deported alien. The district court

affirmed the magistrate judge’s findings that the plea was knowing

and voluntary and that Cartagena understood the charges, potential

penalties and consequences of his plea. Cartagena has not

demonstrated that his plea is invalid, and we conclude this claim

is meritless.

Cartagena next argues that the district court erred when

it added two points to his criminal history score because he was

serving his supervised release sentence when committing the instant

offense. Cartagena objected to the assignment of these points at

sentencing, but the court overruled the objection. Cartagena was

convicted on January 25, 2005, for trafficking cocaine. He

received a suspended sentence and a term of supervised release of

thirty-six months, and was subsequently deported. Cartagena

returned to the United States without permission and was indicted

on June 7, 2006, for illegal reentry pursuant to 8 U.S.C. § 1326.
- 4 -

Cartagena’s indictment fell within the release period, and the

court properly assessed these two points.

While Cartagena admits he was on release at the time of

his arrest, he suggests that he never violated his supervised

release, so should not be assessed these two points. Contrary to

his assertion, under USSG § 4A1.1(d), two points are assessed if

the defendant commits an offense while under any criminal justice

sentence, including supervised release. Whether a defendant

violates the terms of his release is irrelevant. Cartagena’s

argument lacks merit.

Cartagena also contends that the district court should

not have assessed one criminal history point under USSG § 4A1.1(c)

for his 2005 felony cocaine conviction because this essentially

punishes him twice for the same offense in violation of his

constitutional rights. While the guidelines are now advisory in

nature, see United States v. Booker, 543 U.S. 220 (2005), the

computation of a defendant’s criminal history score and its use in

determining the relevant term of imprisonment have not been held

unconstitutional. See generally United States v. Cheek, 415 F.3d

349, 352-53 (4th Cir. 2005). Thus, we conclude the assignment of

this criminal history point was proper. 

Moreover, the district court imposed a sentence within

the statutorily prescribed range and the sentence was reasonable.

While Cartagena argued at sentencing that a lower sentence should
- 5 -

have been imposed, the district court did not err when it declined

to impose a variance sentence. After United States v. Booker, 543

U.S. 220 (2005), a district court is no longer bound by the range

prescribed by the sentencing guidelines. However, in imposing a

sentence post-Booker, courts still must calculate the applicable

guidelines range after making the appropriate findings of fact and

consider the range in conjunction with other relevant factors under

the guidelines and § 3553(a). Gall v. United States, 128 S. Ct.

586, 596 (2007); United States v. Moreland, 437 F.3d 424, 432 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006). The court must give

both parties an opportunity to argue for “whatever sentence they

deem appropriate,” and the district judge “may not presume that the

Guidelines range is reasonable.” Gall, 128 S. Ct. at 596-97. This

court will affirm a post-Booker sentence if it “is within the

statutorily prescribed range and is reasonable.” Id. at 433

(internal quotation marks and citation omitted). “[A] sentence

within the proper advisory Guidelines range is presumptively

reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.

2006); see Rita v. United States, 127 S. Ct. 2456, 2462, 2465

(2007).

Here, the district court sentenced Cartagena post-Booker

and appropriately treated the guidelines as advisory. The court

sentenced Cartagena after considering and examining the sentencing

guidelines and the § 3553(a) factors, as instructed by Booker. The
- 6 -

parties were permitted to argue for the sentence thus desired.

Cartagena’s eighty-month sentence is well within the advisory

guidelines range of 70 to 87 months in prison and the twenty-year

statutory maximum sentence pursuant to 8 U.S.C. § 1362(b)(2)(2000).

The court explained that it had taken the sentencing guidelines and

§ 3553(a) factors into account, and the sentence imposed was based

upon Cartagena’s extensive prior record, continued involvement in

drug activity and illegal reentry into the United States, and the

need to protect the public from further crimes. Based upon these

findings, the court found a variance sentence inappropriate.

Neither Cartagena nor the record suggests any information to rebut

the presumption that his sentence was reasonable. 

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm Cartagena’s conviction and sentence. This court

requires that counsel inform Cartagena, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Cartagena 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

Cartagena.
- 7 -

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