                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4025



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JESUS REYES, a/k/a Carlos Rodriguez,

                                              Defendant - Appellant.



         On Remand from the United States Supreme Court.
                       (S. Ct. No. 04-5881)


Submitted:   September 2, 2005         Decided:   September 28, 2005


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Gregory Davis,
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Unpublished opinions are not binding precedent in this circuit.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).
PER CURIAM:

              On May 18, 2004, this court affirmed Jesus Reyes’s

conviction and sentence.           See United States v. Reyes, No. 04-4025,

2004   WL    1116354    (4th   Cir.   May    18,   2004)    (unpublished).    On

January 24, 2005, the Supreme Court granted Reyes’s petition for

writ of certiorari, vacated this court’s judgment and remanded to

this court for further consideration in light of United States v.

Booker,     125   S.   Ct.   738   (2005).     Having      reconsidered   Reyes’s

sentence in light of Booker and its progeny, we find no reversible

error.      Accordingly, we affirm.

              Jesus Reyes, a.k.a. Carlos Rodriguez, pled guilty to

being present in the United States after deportation following his

conviction for an aggravated felony in violation of 8 U.S.C.

§ 1326(a), (b)(2) (2000).          Reyes was assigned a base offense level

of eight. See U.S. Sentencing Guidelines Manual § 2L1.2(a) (2000).

Reyes’s base offense level was increased twelve levels under

§ 2L1.2(b)(1)(B) because of his prior deportation following a

felony drug trafficking conviction resulting in the imposition of

a sentence of thirteen months or less.               The district court then

applied a three-level adjustment for acceptance of responsibility,

thereby giving Reyes an adjusted offense level of seventeen. Reyes

was placed in criminal history category IV, which included a

two-point increase under § 4A1.1(d) because the offense was deemed




                                       - 2 -
to have been committed while he was serving a term of imprisonment.

Therefore, Reyes’s guideline range was 37 to 46 months.

          At sentencing, Reyes objected both to the two-point

increase under § 4A1.1(d) and the fact that his federal sentence

would run consecutively to his existing state sentence under

§ 5G1.3(a).    The district court sentenced Reyes to a term of

imprisonment for forty-one months.         Over Reyes’s objection, the

district court imposed this sentence to be served consecutively to

the undischarged state sentence in accordance with § 5G1.3(a).

          On appeal, Reyes argues that the district court committed

clear error in assessing two additional criminal history points and

imposing a consecutive sentence.          He maintains that he did not

voluntarily incarcerate himself and had no control over being found

in prison; thus, he should not be penalized for his inability to

leave the country.

          We   review   factual   determinations   made    in   sentencing

proceedings for clear error and legal conclusions de novo.          United

States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996).        Section 1326(a)

plainly states that the offense of unlawful reentry is committed

whenever a previously deported alien, without permission, “enters,

attempts to enter, or is at any time found in, the United States.”

Therefore, the language of the statute clearly encompasses the

circumstances in which Reyes was discovered.




                                  - 3 -
             Next, Reyes argues that he is entitled to resentencing

pursuant to Booker because he was sentenced under a mandatory

scheme.   In Booker, the Supreme Court held Blakely v. Washington,

542 U.S. 296 (2004), applied to the federal sentencing guidelines

and that the mandatory manner in which the guidelines required

courts to impose sentencing enhancements based on facts found by

the court by a preponderance of the evidence violated the Sixth

Amendment.    Thus, when a defendant pleads guilty and is sentenced

under the mandatory guideline scheme, “[a]ny fact (other than a

prior   conviction)   which   is    necessary   to   support   a   sentence

exceeding the maximum authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.”         Booker, 125 S. Ct. at

756.

             Reyes concedes that a Sixth Amendment violation did not

occur as he admitted to the facts upon which the district court

enhanced his sentence.    Reyes’s non-constitutional claim, that he

is entitled to resentencing because he was sentenced under a

mandatory sentencing scheme, raised for the first time on appeal,

is reviewed for plain error.       See United States v. White, 405 F.3d

208, 215 (4th Cir. 2005).     Reyes bears the burden of showing that

this error affected his substantial rights.          Id. at 223.    Because

there is no indication in the record that the district court would




                                   - 4 -
have imposed a lower sentence under an advisory sentencing system,

Reyes cannot make the necessary showing.   Id. at 224-25.

           We therefore affirm the sentence imposed by the district

court.   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




                               - 5 -
