**UN PUBLISHED**  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 2 6 , 2014 Decided: December 9, 2014

Before MOTZ, AGEE, and WYNN , Circuit Judges.

Affirmed by un published 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 A ttorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Felipe Quiterio

- Zavaleta, a native and citizen of Mexico, pled guilty pursuant to a plea agreement to one count of illegal

ree ntry 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 enhancemen t due to Quiterio

Zavaleta’s 1998 c onviction 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 sev enty

- seven to ninety

- six months. The court determined that a sentence of sevent y - 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 concurrentl y with Quiterio

- Zavaleta’s recent state sent ence , 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 v iolence” pursuan t to USSG3 § 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 characteriz ation 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 p hysical 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 whether4 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 h is 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 Cou rt 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 mot ion must state that a copy thereof was served on Quiterio

- Zavaleta. Finally, we dispense with oral argument because the facts and legal contentions are5 adequately presented in the materials before this court and argument would not aid the decisional p rocess.

AFFIRMED