UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4902

ARTURO REYES-VALENCIA, a/k/a

Carlos Palomares, a/k/a Arturo

Gutierrez, a/k/a Alan Juarez,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

William L. Osteen, District Judge.

(CR-98-164)

Submitted: August 10, 1999

Decided: September 23, 1999

Before MURNAGHAN, NIEMEYER, and HAMILTON,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, John A. Dusenbury, Jr.,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Walter C. Holton, Jr., United States Attorney, Arnold L.

Husser, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Arturo Reyes-Valencia appeals his guidelines sentence imposed for

his conviction for unlawful reentry after deportation. We affirm.

Reyes-Valencia, a citizen of Mexico, was convicted in 1985 in California state court of felony possession of marijuana for sale, in violation of Cal. Health & Safety Code § 11359 (West 1991). He was

deported on the basis of this conviction in 1989 and again in 1995.

In June 1998, he was arrested in North Carolina and pleaded guilty

to being an alien who had previously been deported after a conviction

for an aggravated felony and who had reentered the United States

without prior permission in violation of 8 U.S.C.A.§§ 1326(a), (b)

(West 1999).1

In her presentence report, the probation officer started from a base

level of eight under U.S. Sentencing Guidelines Manual § 2L1.2(a)

(1998), "Unlawfully Entering or Remaining in the United States." To

this she added sixteen offense levels because Reyes-Valencia was

previously deported for the 1985 California conviction, "an aggravated felony," which is a specific offense characteristic under USSG

§ 2L1.2(b)(1)(A). A three-level reduction in offense level was recommended for the defendant's acceptance of responsibility. See USSG

§ 3E1.1(a), (b). A total of twenty-one criminal history points placed

Reyes-Valencia in Category VI, and the resulting guidelines sentencing range was seventy-seven to ninety-six months.

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1 In an opinion issued a few months prior to Reyes-Valencia's arrest,

the Supreme Court held that § 1326(b)(2), which authorizes a maximum

penalty of twenty years if a defendant convicted of illegal reentry under

subsection (a) had a previous conviction for an"aggravated felony," is

a penalty provision and, therefore, it is not necessary to charge the fact

of the earlier conviction in the indictment. See Almendarez-Torres v.

United States, 523 U.S. 224 (1998).

 2
Reyes-Valencia objected to the application of § 2L1.2(b)(1)(A) on

the ground that the characterization of the California conviction,

which involved only 31.9 grams of marijuana,2 as an "aggravated felony" was "an impermissibly expansive interpretation" of the term

because it treated him no differently from one who was convicted of

more serious drug offenses. (J.A. 17). The court accepted the findings

and guidelines calculations contained in the presentence report. However, in addition to the approach set forth in the presentence report,

the district court announced an alternative route to the same sentencing range. Agreeing that the sixteen-level increase triggered by the

California conviction overstated the seriousness of that offense, the

court departed downward one offense level; however, this downward

departure was offset by a one-level increase on the ground that Criminal History Category VI understated the seriousness of the defendant's criminal record. The court then sentenced Reyes-Valencia to

ninety-four months' imprisonment. On appeal, Reyes-Valencia offers

a refined version of the argument he advanced at the sentencing hearing.3

Reyes-Valencia concedes that his California drug conviction falls

within the applicable definition of "aggravated felony" found in 8

U.S.C. § 1101(a)(43)(B). See, e.g., United States v. Polanco, 29 F.3d

35, 38 (2d Cir. 1994). Using the analysis outlined in Solem v. Helm,

463 U.S. 277 (1983), Appellant argues that the Guidelines' imposition

of an increase of sixteen offense levels regardless of the relative seriousness of the predicate "aggravated" felony constitutes an unconstitutionally disproportionate penalty. We disagree.

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2 In his opening brief, appellant often uses the figure "three and onehalf grams." See Appellant's br. at 4, 12, 14 and 15. The correct figure

is 31.9 grams. (J.A. 55).

3 An application note in effect since November 1, 1997, suggests that

a departure from the sixteen-level enhancement under§ 2L1.1(b)(1)(A)

"may be warranted based on the seriousness of the aggravated felony."

USSG § 2L1.1, comment. (n.5). The possibility of such a departure was

noted in the presentence report. (J.A. 69). Appellant, however, is precluded from appealing the extent of the departure. See United States v.

Hill, 70 F.3d 321, 324 ("Under [18 U.S.C.] 3742(a), we . . . lack jurisdiction to review the extent of the district court's departure, except in

instances in which the departure decision resulted in a sentence imposed

in violation of law or resulted from an incorrect application of the Guidelines.") (emphasis in original).

 3
Appellant's reliance on Solem, a case that involved a sentence of

life without possibility of parole, is misplaced. It is doubtful that a

proportionality review is ever appropriate in cases not involving

either a death sentence or a sentence of life without possibility of

parole. See, e.g., Bevarati v. Smith, 120 F.3d 500, 504-05 (4th Cir.

1997) ("[W]e conclude that [the inmates'] argument must fail on the

basis of our repeated holdings that outside the context of a capital sentence a proportionality review is necessary only with respect to sentences of life imprisonment without the possibility of parole").

However, even if a Solem proportionality review were still available

in some cases not involving at least a life sentence, the review of such

a case involves at most whether the sentence is"grossly disproportionate" to the offense. See United States v. Kratsas, 45 F.3d 63, 69

(4th Cir. 1995) (Niemeyer, J., concurring in the judgment). That portion of the sentence attributable to the enhancement for the predicate

offense--a drug trafficking felony--simply "does not give rise to an

inference of gross disproportionality" necessitating a comparative

analysis of Reyes-Valencia's sentence with other sentences for similar

conduct. See Harmeline v. Michigan, 501 U.S. 957, 1005 (1991)

(Kennedy, J., concurring).

Accordingly, we affirm Reyes-Valencia's sentence. 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

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