United States of America v. Luis Alberto Velasco-Godinez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4825
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUIS ALBERTO VELASCO-GODINEZ,
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-04-134)
Submitted: July 29, 2005 Decided: September 26, 2005
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, 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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to a plea agreement, Luis Alberto Velasco-
Godinez pled guilty to illegal reentry by a deported alien after
conviction of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) & (b)(2) (2000). The district court sentenced Velasco-
Godinez under the Federal Sentencing Guidelines to twenty-three
months in prison. Velasco-Godinez timely appealed, challenging the
district court’s calculation of his criminal history score. We
affirm.
Velasco-Godinez contends that his sentence is
unconstitutional in light of Blakely v. Washington, 542 U.S. 296
(2004). Because he preserved this issue by objecting to the
presentence report based upon Blakely, this court’s review is de
novo. United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
When a defendant preserves a Sixth Amendment error, this court
“must reverse unless [it] find[s] this constitutional error
harmless beyond a reasonable doubt, with the Government bearing the
burden of proving harmlessness.” Id. (citations omitted); see
United States v. White, 405 F.3d 208, 223 (4th Cir. 2005)
(discussing difference in burden of proving that error affected
substantial rights under harmless error standard in Fed. R. App. P.
52(a), and plain error standard in Fed. R. App. P. 52(b)).
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that the mandatory manner in which the Federal

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Sentencing Guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. Id. at 746, 750
(Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by making the Guidelines advisory through
the removal of two statutory provisions that had rendered them
mandatory. Id. at 746 (Stevens, J., opinion of the Court); id. at
756-57 (Breyer, J., opinion of the Court).
In calculating Velasco-Godinez’s criminal history score,
the district court assigned four criminal history points based upon
prior convictions and two criminal history points based upon the
court’s finding that Velasco-Godinez committed the instant offense
while a probation violation warrant was outstanding. U.S.
Sentencing Guidelines Manual § 4A1.1 (2003). Thus, Velasco-
Godinez’s criminal history score placed him in Criminal History
Category III. Based on this criminal history category and an
offense level of 13, Velasco-Godinez’s guideline range was eighteen
to twenty-four months imprisonment.
Regarding his criminal history points for prior
convictions, Velasco-Godinez argues that the factual findings
required to determine whether particular convictions are countable
and how many points are assessed involve more than the mere fact of
a prior conviction and therefore are subject to the requirements of
Blakely. In Almendarez-Torres v. United States, 523 U.S. 224, 233-

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35 (1998), the Supreme Court held that the government need not
allege in its indictment and need not prove beyond reasonable doubt
that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence. Although
the opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000),
expressed some uncertainty regarding the future vitality of
Almendarez-Torres, this court has subsequently confirmed that
Almendarez-Torres was not overruled by Apprendi, and remains the
law. United States v. Cheek, 415 F.3d 349 (4th Cir. 2005); see
United States v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002); see
generally Shepard v. United States, 125 S. Ct. 1254 (2005)
(discussing documents that a sentencing court may consider in
determining whether a prior conviction is considered a violent
felony).
Turning to the two criminal history points assessed
because Velasco-Godinez committed the instant offense while a
probation violation warrant was outstanding, we find that any error
in assessing these points is harmless because even without the two
points, Velasco-Godinez’s criminal history score would place him in
Criminal History Category III. USSG Ch. 5, Pt. A (Sentencing
Table).
Furthermore, to determine the guideline range free of
judicial enhancements, this court uses the defendant’s “guideline
range based on the facts he admitted before adjusting that range

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for acceptance of responsibility.” United States v. Evans, 416
F.3d 298, 300 n.4 (4th Cir. 2005). In this case, Velasco-Godinez’s
offense level without the three-level adjustment for acceptance of
responsibility would be 16. The guideline range for offense level
16 and criminal history category III is twenty-seven to thirty-
three months imprisonment. USSG Ch. 5, Pt. A (Sentencing Table).
Velasco-Godinez’s twenty-three month sentence does not exceed the
maximum sentence authorized by the facts he admitted. Evans, 416
F.3d at 300.
For the reasons stated, we affirm Velasco-Godinez’s
conviction and 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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