UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4085

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARIO HERNANDEZ-GONZALEZ, a/k/a Alex Cruz,

a/k/a Mario Hernandez, a/k/a Mario GonzalezHernandez,

Defendant - Appellant.

Appeal from the United States District Court for the Western

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

District Judge. (3:05-cr-00271-ALL)

Submitted: August 23, 2006 Decided: September 14, 2006

 

Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,

Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,

United States Attorney, Douglas Scott Broyles, Assistant United

States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Mario Hernandez-Gonzalez pled guilty to illegal reentry

of an aggravated felon after deportation, in violation of 8 U.S.C.

§ 1326(a), (b)(2) (2000). He was sentenced to forty-one months’

imprisonment. Hernandez-Gonzalez’ attorney has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), stating

that in her opinion there are no meritorious issues for appeal, but

raising as potential issues whether the district court erred by

accepting Hernandez-Gonzalez’ guilty plea without ensuring it was

knowingly and voluntarily entered and that there was a factual

basis for the plea, and by enhancing Hernandez-Gonzalez’ offense

level sixteen levels on the basis of a prior conviction that was

not charged in his indictment. Hernandez-Gonzalez was notified of

his right to file a pro se supplemental brief, but has not done so.

Finding no reversible error, we affirm.

Hernandez-Gonzalez’ counsel argues that the district

court erred in accepting Hernandez-Gonzalez’ guilty plea without

ensuring that there was a sufficient factual basis for finding that

he had been deported after obtaining a conviction for an aggravated

felony and that his plea was knowingly and voluntarily entered, in

violation of Fed. R. Crim. P. 11. Because Hernandez-Gonzalez did

not seek in the district court to withdraw his guilty plea, his

allegations of Rule 11 error are reviewed for plain error. See

United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir.
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2002)(holding that “plain error analysis is the proper standard for

review of forfeited error in the Rule 11 context”). Under plain

error review, this court may only notice an error that was not

preserved by timely objection if the defendant can demonstrate:

(1) that an error occurred, (2) that the error was plain, and

(3) that the error was material or affected the defendant’s

substantial rights. United States v. Olano, 507 U.S. 725, 731-32

(1993). Even when these three conditions are satisfied, the court

should only correct the error if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. at

732.

Prior to accepting a guilty plea, the trial court must ensure

the defendant understands the nature of the charges against him,

the mandatory minimum and maximum sentences, and other various

rights, so it is clear that the defendant is knowingly and

voluntarily entering his plea, and determine whether there is a

factual basis for the plea. Fed. R. Crim. P. 11(b)(1),(3); United

States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991). After

a thorough review of the record, we find a proper Rule 11 colloquy

was conducted. 

Hernandez-Gonzalez also claims that the district court

erred when it enhanced his sentence sixteen levels using a prior

conviction that was not charged in his indictment. However, the

government need not allege in its indictment and need not prove
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beyond reasonable doubt that a defendant had prior convictions for

a district court to use those convictions for purposes of enhancing

a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 246

(1998). U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2004)

applies a sixteen-level enhancement if the defendant was previously

deported after a “crime of violence,” defined in the commentary to

include an “aggravated assault.” USSG § 2L1.2, comment

(n.1(B)(iii)). In 2002, Hernandez-Gonzalez was convicted in North

Carolina of assault with a deadly weapon with intent to kill and he

was subsequently deported. We therefore find the district court

did not err in applying the sixteen-level enhancement. 

Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal. Accordingly, we affirm

Hernandez-Gonzalez’ conviction and sentence. This court requires

that counsel inform her 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 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