UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4847

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DIGNA MENDOZA-ALBERTO,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. Frank W. Bullock, Jr.,

District Judge. (CR-04-128)

Submitted: August 31, 2005 Decided: September 29, 2005

Before LUTTIG, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON, P.A.,

Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,

United States Attorney, Angela H. Miller, Assistant United States

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

 Digna Mendoza-Alberto appeals from the 33-month sentence

imposed after her conviction following her guilty plea to reentry

of a deported alien felon, in violation of 8 U.S.C. § 1326(a) &

(b)(2) (2000). On appeal, Mendoza-Alberto argues that her sentence

is erroneous in light of United States v. Booker, 125 S. Ct. 738

(2005), because the district court increased her criminal history

score based upon facts outside the indictment, plea agreement, and

stipulated factual basis for the plea. Because we do not find any

constitutional error in the computation of her sentence, we affirm

the sentence.

Digna Mendoza-Alberto pled guilty pursuant to a written

plea agreement to the count specified in the indictment: unlawful

reentry by an alien after having been deported after conviction for

an aggravated felony narcotics offense. The parties stipulated to

the factual basis of the plea, which specified that the previous

state narcotics conviction carried a 16-month sentence.

The presentence report (PSR) assessed a base offense

level of 8, with an additional 8 levels because Mendoza-Alberto had

been previously deported after conviction for an aggravated felony,

as charged in the indictment and stipulated to in the factual

basis. Her offense level was reduced by three for acceptance of

responsibility under U.S. Sentencing Guidelines Manual § 3E1.1

(2003). She therefore had a total offense level of 13. Her
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criminal history score was increased by a total of three points,

including a 2 point increase for committing the offense while on

escape from prison, USSG § 4A1.1(d), and a 1 point increase because

the offense was committed less than two years after release from

imprisonment, USSG § 4A1.1(e). The resulting criminal history

category was V. The sentencing guidelines range was 30-37 months.

See USSG Ch.5, Pt.A. At sentencing, Mendoza-Alberto raised

specific objections to the eight-level enhancement for being an

aggravated felon, and the three-level enhancement under § 4A1.1(d)

& (e) based on Blakely v. Washington, 542 U.S. 296 (2004). The

district court noted, but overruled the objections and declined to

give an alternative sentence. Mendoza-Alberto received a 33-month

sentence.

On appeal, Mendoza-Alberto argues that the increase in

her criminal history score based upon her escape status and that

she committed the offense within two years after release from

imprisonment was made in violation of the Sixth Amendment, in

accordance with United States v. Booker, 125 S. Ct. 738 (2005).

Because Mendoza-Alberto preserved the issue for appeal, the claim

is reviewed for harmless error. United States v. Mackins, 315 F.3d

399, 405 (4th Cir. 2003).

The Supreme Court held in Booker, 125 S. Ct. at 746, 750,

that the mandatory manner in which the federal sentencing

guidelines required courts to impose sentencing enhancements based
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on facts found by the court by a preponderance of the evidence

violated the Sixth Amendment. This court recently held in United

States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005), that “[f]or

purposes of determining whether the district court erred, we

necessarily use [the] guideline range based on the facts admitted

before adjusting that range for acceptance of responsibility.” 

We conclude there is no constitutional error in the

calculation of Mendoza-Alberto’s sentence. Without the 3-point

increase under USSG § 4A1.1, Mendoza-Alberto’s criminal history

score would have been 8 resulting in a criminal history category of

IV. The offense level without consideration of the acceptance of

responsibility reduction, see Evans, 416 F.3d at 300, would have

been 13. The resulting guidelines range would have been 27-33

months. USSG § Ch. 5, Pt.A. Because Mendoza-Alberto’s sentence of

33 months is within the guideline range based on facts admitted

before adjusting for acceptance of responsibility, there is no

error and we affirm the 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