UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-4515

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EZEQUIEL MARTINEZ ARIAS, a/k/a Ezequiel Martines Arias, a/k/a Daniel 

Ortega Martinez, a/k/a Manuel Martinez Sanchez,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at 

Charlotte. Robert J. Conrad, Jr., District Judge. (3:18-cr-00150-RJC-DSC-1)

Submitted: September 1, 2022 Decided: October 6, 2022

Before GREGORY, Chief Judge, THACKER, Circuit Judge, and TRAXLER, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Anthony Martinez, Federal Public Defender, Jared P. Martin, Assistant 

Federal Public Defender, FEDERAL PUBLIC DEFENDER FOR THE WESTERN 

DISTRICT OF NORTH CAROLINA, Charlotte, North Carolina, for Appellant. William 

T. Stetzer, Acting United States Attorney, Anthony J. Enright, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, 

for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Ezequiel Martinez Arias pleaded guilty to reentry of a deported alien subsequent to 

a felony conviction, in violation of 8 U.S.C. § 1326(a), (b)(1). On appeal, Arias challenges 

the procedural reasonableness of his 52-month sentence. For the reasons that follow, we 

affirm.

We review a sentence for reasonableness, applying a deferential abuse-of-discretion

standard. United States v. Shephard, 892 F.3d 666, 670 (4th Cir. 2018). In reviewing the 

procedural reasonableness of a sentence, we ensure that the district court committed no 

significant procedural error, such as miscalculating the advisory Sentencing Guidelines 

range, inadequately considering the 18 U.S.C. § 3553(a) factors, or insufficiently 

explaining the sentence. United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019). We 

review a claim of error that was not properly preserved in the district court for plain error. 

United States v. Cohen, 888 F.3d 667, 678 (4th Cir. 2018). “To prevail on plain error 

review, an appellant must show (1) that the district court erred, (2) that the error was plain, 

and (3) that the error affected his substantial rights.” Id. at 685.

Arias first argues that the district court incorrectly calculated his advisory 

Sentencing Guidelines range by using his prior state felony conviction for heroin 

trafficking to both enhance his offense level under U.S. Sentencing Guidelines Manual

§ 2L1.2 (2018)—the guideline applicable to illegal reentry convictions under § 1326—and 

to calculate his criminal history score. However, the commentary to USSG § 2L1.2 

provides that “[a] conviction taken into account under [this section] is not excluded from 

consideration of whether that conviction receives criminal history points.” USSG § 2L1.2 

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cmt. n.3. As we have recognized, the “commentary to the Sentencing Guidelines is 

authoritative and binding, ‘unless it violates the Constitution or a federal statute, or is 

inconsistent with, or [a] plainly erroneous reading of’ the Guideline itself.” United States 

v. Peterson, 629 F.3d 432, 435 (4th Cir. 2011) (quoting Stinson v. United States, 508 U.S. 

36, 38 (1993)). Arias has not made this showing. Additionally, we have previously upheld 

the use of a single prior conviction to increase both the offense level and criminal history 

score for an illegal reentry offense under § 1326. See United States v. Crawford, 18 F.3d 

1173, 1178-80 (4th Cir. 1994) (holding that use of prior felony conviction both as a specific 

offense characteristic under USSG § 2L1.2(b) and to assess criminal history points was not 

impermissible double counting because it was not expressly prohibited by the Guidelines). 

Arias next argues that the district court erred in applying USSG § 5G1.3(d), p.s., to

impose a consecutive sentence, rather than applying USSG § 5G1.3(b), which directs

courts to impose a concurrent sentence to an undischarged term of imprisonment. Per its 

terms, USSG § 5G1.3(b) applies when an existing term of imprisonment resulted from 

another offense that is relevant conduct to the instant offense. Commentary to USSG 

§ 5G1.3, however, explicitly states that USSG § 5G1.3(b) “does not apply in cases in which 

the prior offense . . . is a prior conviction for which the defendant received an increase 

under § 2L1.2,” as is the case here. See USSG § 5G1.3 cmt. n.2(B). Instead, the district 

court correctly applied § 5G1.3(d), p.s., which applies to “any other case involving an 

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undischarged term of imprisonment.”* Therefore, the district court did not plainly err in 

calculating Arias’ Sentencing Guidelines range.

Arias additionally argues that the district court failed to adequately explain its 

reasons for imposing a consecutive sentence. Specifically, Arias asserts that, even if the 

district court correctly determined that USSG § 5G1.3(d), p.s., applied to his case, the court

failed to adequately address his nonfrivolous argument that he would have faced a lower 

sentence if his heroin trafficking and illegal reentry charges had been brought together in 

federal court. Because Arias objected to the sentence as being greater than necessary after 

it was imposed, this issue was properly preserved. See United States v. Lynn, 592 F.3d 

572, 577-78 (4th Cir. 2010).

As relevant here, the application note to USSG § 5G1.3(d), p.s., provides that the 

district court should consider: (i) the § 3553(a) factors; (ii) the type and length of the prior 

undischarged sentence; (iii) the time served on the prior undischarged sentence and the 

time likely to be served before release; (iv) whether the prior undischarged sentence was 

imposed in state court rather than federal court; and (v) any other circumstances relevant 

to an appropriate sentence for the instant offense. See USSG § 5G1.3(d), cmt. n.4(A). 

* Arias has filed a Fed. R. App. P. 28(j) notice of supplemental authorities relying 

on our recent decision in United States v. Campbell, 22 F.4th 438, 447 (4th Cir. 2022) 

(holding commentary to USSG § 4B1.2 was inconsistent with text of USSG § 4B1.2(b) for 

purposes of career offender enhancement). In Campbell, we explained that, because the 

commentary to USSG § 4B1.2 expanded the definition of a “controlled substance offense,” 

the commentary was plainly inconsistent with the Guidelines and thus not entitled to 

deference. Id. at 443-49. Because Arias fails to demonstrate any inconsistency between 

the relevant commentary and guidelines in his case, his reliance on Campbell is misplaced.

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Moreover, “a district court must address or consider all non-frivolous reasons presented 

for imposing a different sentence and explain why [the court] has rejected those 

arguments.” United States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020) (internal 

quotation marks omitted). The record confirms that the district court adequately considered 

Arias’ arguments in favor of a concurrent sentence but ultimately found that a consecutive 

sentence was necessary to deter Arias and to protect the public. We therefore conclude 

that the district court did not procedurally err in its explanation for imposing a consecutive 

sentence.

Finally, Arias argues that, in fashioning his sentence, the district court erroneously 

assumed that he was a drug trafficking recidivist, in violation of his due process rights. A

criminal defendant has a due process right to be sentenced based on accurate information. 

United States v. Nichols, 438 F.3d 437, 440 (4th Cir. 2006). Relatedly, the Supreme Court 

has recognized that a sentencing court procedurally errs when it sentences a defendant 

“based on clearly erroneous facts.” Gall v. United States, 552 U.S. 38, 51 (2007). “A 

[factual] finding is clearly erroneous when[,] although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite and firm conviction that a 

mistake has been committed.” United States v. Wooden, 887 F.3d 591, 602 (4th Cir. 2018) 

(internal quotation marks omitted). The record does not demonstrate that the district court 

relied on any clearly erroneous information in imposing its sentence. Consequently, we 

conclude that Arias’ sentence is procedurally reasonable.

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Accordingly, we affirm the district court’s judgment. We dispense with oral 

argument because the facts and legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional process.

AFFIRMED

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