UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4138

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

FELIPE QUITERIO-ZAVALETA,

 Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:11-cr-00384-TDS-1)

Submitted: November 26, 2014 Decided: December 9, 2014

Before MOTZ, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN, 

Winston-Salem, North Carolina, for Appellant. Ripley Rand, 

United States Attorney, Randall S. Galyon, Assistant United 

States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Felipe Quiterio-Zavaleta, a native and citizen of Mexico, 

pled guilty pursuant to a plea agreement to one count of illegal 

reentry of an aggravated felon in violation of 8 U.S.C. 

§ 1326(a), (b)(2) (2012). Pursuant to U.S. Sentencing Guidelines 

Manual (USSG) § 2L1.2(b)(1)(A) (2011), the presentence report 

(PSR) applied a sixteen-level enhancement due to QuiterioZavaleta’s 1998 conviction in North Carolina of felony assault with 

a firearm on a law enforcement officer.

The district court adopted the PSR and the resulting 

advisory sentencing range of seventy-seven to ninety-six months.

The court determined that a sentence of seventy-seven months was 

appropriate and then granted the government’s motion for a 45% 

downward departure pursuant to USSG § 5K1.1, which yielded a 

sentence of forty-two months. The court then granted the 

parties’ motion to run the federal sentence concurrently with 

Quiterio-Zavaleta’s recent state sentence, and reduced his sentence 

in the instant case to fifteen months in order to achieve this 

result. Quiterio-Zavaleta appeals. His attorney has filed a brief 

in accordance with Anders v. California, 386 U.S. 738 (1967), in 

which he asserts that there are no meritorious issues for appeal 

but argues that the district court erred in determining that the 

felony assault with a firearm on a law enforcement officer 

constituted a “crime of violence” pursuant to USSG 
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§ 2L1.2(b)(1)(A). Quiterio-Zavaleta has filed a pro se 

supplemental brief arguing that his federal sentence should run 

concurrently with his state sentence and that his fifteen-month 

sentence is in the maximum range. The government has filed a 

response brief. Finding no error, we affirm.

We review de novo the district court’s 

characterization of Quiterio-Zavaleta’s prior conviction as a 

crime of violence for the purpose of enhancing his sentence. 

See United States v. Gomez, 690 F.3d 194, 197 (4th Cir. 2012). 

Counsel argues that the district court erred in enhancing 

Quiterio-Zavaleta’s sentence because the assault element of his 

prior offense is defined by common law and can encompass a 

“show” or “appearance” of force and violence that does not

require physical contact. See State v. Roberts, 155 S.E.2d 303, 

305 (N.C. 1967) (noting that assault in North Carolina is 

defined as “an overt act or an attempt, or the unequivocal 

appearance of an attempt, with force and violence, to do some 

immediate physical injury to the person of another, which show 

of force or menace of violence must be sufficient to put a 

person of reasonable firmness in fear of immediate bodily harm”) 

(internal quotation marks and citations omitted). Accordingly, 

he contends, it does not qualify categorically as a crime of 

violence. See United States v. Donnell, 661 F.3d 890, 893 (4th 

Cir. 2011) (utilizing categorical approach to determine whether 
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a conviction qualifies as a crime of violence under the 

Guidelines). We disagree.

We conclude that Quiterio-Zavaleta’s prior conviction 

in North Carolina for felony assault with a firearm on a law 

enforcement officer categorically qualifies as a crime of 

violence and was thus properly used to enhance his sentence.

Accordingly, counsel’s challenge to the sentencing enhancement 

is unavailing. Finally, our review discloses that the issues 

raised in Quiterio-Zavaleta’s pro se supplemental brief are 

without merit.

In accordance with Anders, we have reviewed the record in 

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

therefore affirm the district court’s judgment. This court 

requires that counsel inform Quiterio-Zavaleta, in writing, of the 

right to petition the Supreme Court of the United States for 

further review. If Quiterio-Zavaleta 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 Quiterio-Zavaleta. Finally, we dispense 

with oral argument because the facts and legal contentions are 
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adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED