                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5119



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


WALDO LANARES-MENDEZ,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-209)


Submitted:   October 25, 2006             Decided:   December 4, 2006


Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for
Appellant.    Gretchen C. F. Shappert, United States Attorney,
David A. Brown, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Waldo Lanares-Mendez pled guilty to illegally reentering

the United States after being deported, in violation of 8 U.S.C.

§ 1326(a), (b)(2) (2000), and was sentenced to a term of sixty

months    imprisonment.        Lanares-Mendez            appeals     his     sentence,

contending that the district court’s imposition of a sixteen-level

enhancement       under      U.S.         Sentencing         Guidelines          Manual

§   2L1.2(b)(1)(A)     (2004),      based    on    his     prior    conviction       for

harboring an illegal alien, violated the Sixth Amendment.                       He also

argues that counting the same conviction in his criminal history

score resulted in an unreasonable sentence.                 We affirm.

            Lanares-Mendez         was   deported    in     2000     after      he   was

convicted of harboring an illegal alien.                 A sixteen-level increase

in offense level applies under USSG § 2L1.2(b)(1)(A) when the

defendant has previously been deported after a conviction for an

alien smuggling offense.            Lanares-Mendez asserted at sentencing

that the prior conviction was not an alien smuggling offfense

because he had only given water to persons entering the country as

a charitable act.*        However, the district court agreed with the

government that the conviction met the definition of an “alien

smuggling offense,” as defined in the guideline commentary, which

states    that   it   “has   the    meaning      given    that     term    in   section


      *
      According to the presentence report, Lanares-Mendez was
convicted, under an alias, of harboring a illegal alien at an
address in Texas.

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101(a)(43)(N) of the Immigration and Nationality Act (8 U.S.C.

§ 1101(a)(43)(N) [2000]).” An “alien smuggling offense” is defined

in § 1101(a)(43)(N) as –

     [A]n offense described in paragraph (1)(A) or (2) of
     section 1324(a) of this title (relating to alien
     smuggling), except in the case of a first offense for
     which the alien has affirmatively shown that the alien
     committed the offense for the purpose of assisting,
     abetting, or aiding only the alien’s spouse, child, or
     parent (and no other individual) to violate a provision
     of this chapter[;]

            Lanares-Mendez argues that it was a violation of the

Sixth Amendment to increase his offense level based on a prior

conviction for alien smuggling when that fact was not charged in

the indictment and determined beyond a reasonable doubt.          Lanares-

Mendez acknowledges that the fact of a prior conviction need not be

charged in the indictment or proved beyond a reasonable doubt. See

United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.) (holding

that United States v. Booker, 543 U.S. 220 (2005), reaffirmed

exception set out in Almendarez-Torres v. United States, 523 U.S.

224 (1998), for sentence enhancements based on recidivism), cert.

denied,   126   S.   Ct.   640   (2005).    Because   the   district   court

correctly applied the existing law, we conclude that no error

occurred.

            Next, Lanares-Mendez argues that, because the sentencing

guidelines permit his prior conviction and sentence for alien

smuggling to be used to increase his offense level and counted in

his criminal history as well, his sentence is unreasonable.              He

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suggests that this court should remand his case so that the

district   court   may   consider   whether   a   downward   departure   is

warranted to “cure the double counting.”

           This court has held that a sentence within a properly

calculated guideline range is presumptively reasonable.            United

States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006).         A sentence

may be procedurally unreasonable if, for instance, the court fails

to make necessary fact findings or adequately explain its reasons

for imposing the sentence.          Id. at 434.      A sentence may be

substantively unreasonable if the court misapplies the guidelines

or “rejects policies articulated by Congress or the Sentencing

Commission.”   Id.   In effect, Lanares-Mendez is arguing that his

sentence is substantively unreasonable because the district court

failed to reject the policy adopted by the Sentencing Commission on

double counting.     We conclude that he has not shown that his

sentence is unreasonable.

           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




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