UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4592

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERTO DIAZ-RUEDA, a/k/a Roberto Diaz,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

Chief District Judge. (3:05-cr-00043)

Submitted: March 29, 2007 Decided: April 3, 2007

Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Leonard G. Kornberg, Charlotte, North Carolina, for Appellant.

Kenneth Michel Smith, OFFICE OF THE UNITED STATES ATTORNEY,

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*

The probation officer calculated an advisory sentencing

guideline range of fifty-seven to seventy-one months’ imprisonment

founded on an offense level of twenty-one and a criminal history

category of IV, after a sixteen-level increase to Diaz-Rueda’s base

offense level of eight, pursuant to U.S. Sentencing Guidelines

Manual,(“USSG”) § 2L1.2(b)(2)(A)(I) (2004), and a three-level

reduction for acceptance of responsibility, pursuant to USSG

§§ 3E1.1(a), (b).

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PER CURIAM:

Roberto Diaz-Rueda pled guilty to one count of illegal

re-entry into the United States by a previously deported felon, in

violation of 8 U.S.C. §§ 1326(a), (b)(2) (2000). The district

court sentenced Diaz-Rueda to fifty-seven months’ imprisonment and

two years of supervised release.* Diaz-Rueda’s counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that there are no meritorious grounds for appeal, but

questioning whether the district court erred in penalizing DiazRueda three times for the same conviction. Specifically, he notes

that Diaz-Rueda was convicted of the cocaine trafficking offense

which formed the basis for his deportation, then he was assessed a

sixteen-level increase to his base offense level based on the same

conviction, and also received three criminal history points for the

same conviction, resulting in an increase to his criminal history

category from III to IV. Diaz-Rueda was given an opportunity to

file a pro se brief, but has failed to do so.

In reviewing Diaz-Rueda’s issue on appeal, we find no

error. As we have held before, a district court properly may use
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a prior conviction to enhance the offense level and the criminal

history category. See United States v. Crawford, 18 F.3d 1173,

1180-81 (4th Cir. 1994). Moreover, the district court properly

“consult[ed the] Guidelines and [took] them into account when

sentencing,” United States v. Booker, 543 U.S. 220, , 125 S.

738, 767 (2005), it made all the factual findings appropriate for

that determination, considered the sentencing range along with the

other factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2006), and imposed a sentence that was “within the statutorily

prescribed range and . . . reasonable.” United States v. Hughes,

401 F.3d 540, 546-47 (4th Cir. 2005); see also United States v.

Green, 436 F.3d 449, 456-57 (4th Cir. 2006) (finding a sentence

within a properly calculated advisory range to be presumptively

reasonable). Given these facts, we find to be reasonable the

district court’s sentence at the low end of a properly calculated

advisory guidelines range. 

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Diaz-Rueda’s conviction and sentence.

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

his right to petition 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
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representation. Counsel’s motion must state that a copy thereof

was served on the client.

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