United States of America v. Jose Oscar Mejia-Mejivar

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE OSCAR MEJIA-MEJIVAR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CR-04-
56)
Submitted: November 30, 2005 Decided: December 29, 2005
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Daniel W. Stiller, Assistant
Federal Public Defender, Paresh S. Patel, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Stuart A. Berman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Jose Oscar Mejia-Mejivar pled guilty to illegal reentry
of a removed alien after conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326 (a), (b)(2) (2000). He appeals his
sentence.
Mejia-Mejivar argues on appeal that the district court
erred by treating the Sentencing Guidelines as mandatory in
violation of United States v. Booker, 125 S. Ct. 738 (2005), and
United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), and by
announcing an alternate sentence without addressing the factors of
18 U.S.C. § 3553(a) (West 2000 & Supp. 2005). Even assuming,
without deciding, that the harmless error standard applies, Mejia-
Mejivar cannot establish that any error by the district court in
the application of the guidelines as mandatory affected his
substantial rights because it had no effect on the district court’s
selection of Mejia-Mejivar’s sentence. The district court noted in
sentencing Mejia-Mejivar:
“I have considered carefully the circumstances of this
defendant . . . and if the [S]entencing Guidelines did
not exist, I would impose the same sentence . . . I do
not believe that the sentence that is developed by
application of the Sentencing Guidelines is, in any way,
materially different than that which I would impose,
independent of the Sentencing Guidelines.”
Accordingly, we deny Mejia-Mejivar’s motion to remand and
affirm his conviction and sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in

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the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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