                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4135


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE ZAVALA ZAMBRANO, a/k/a Josue Sanbrano,        a/k/a   Jamie
Mariaga-Padillas, a/k/a Jamie Padillas,

                Defendant - Appellant.



                             No. 10-4136


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE LUIS ZAVALA-SAMBRANO,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.    Henry E. Hudson, District
Judge. (3:09-cr-00236-HEH-1; 3:09-cr-00424-HEH-1)


Submitted:   May 31, 2011                  Decided:   June 14, 2011


Before SHEDD, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Sherri A. Thaxton, SHERRI A. THAXTON, P.C., Richmond, Virginia,
for Appellant.   Stephen David Schiller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In these consolidated appeals, Jose Zavala Zambrano *

appeals from the thirty-eight-month sentence imposed upon his

guilty    plea    to   illegally    reentering       the    United    States   after

having been deported following a conviction for an aggravated

felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006), and

the revocation of his supervised release and twelve-month term

of imprisonment.          Appellate counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), in each appeal.

            In the illegal reentry case, counsel questions whether

the district court committed a procedural sentencing error when

it   increased     Zambrano’s      base    offense    level    by    eight   for   an

aggravated       felony    based   on     his    prior     state    conviction     for

domestic assault and battery.              In the revocation of supervised

release    case,    counsel    questions        whether    there    was   sufficient

evidence to find Zambrano violated a condition of his supervised

release.         Counsel    concludes,          however,    that    there    are   no

meritorious issues in either appeal.                  Zambrano filed a pro se

supplemental brief arguing that the district court committed a

procedural sentencing error in imposing the eight-level increase

for a prior aggravated felony conviction.                   Zambrano relies on a

      *
       Although the Appellant names in these appeals are spelled
differently, both names refer to the same individual, to whom we
refer as “Zambrano.”



                                           3
recently      decided          Supreme        Court     case,       Carachuri-Rosendo      v.

Holder, 130 S. Ct. 2577 (2010).                     Finding no error we affirm.

              We review a sentence for reasonableness, applying an

abuse of discretion standard.                    Gall v. United States, 552 U.S.

38, 51 (2007); see also United States v. Layton, 564 F.3d 330,

335 (4th Cir. 2009).                In so doing, we first examine the sentence

for    “significant            procedural        error,”       including       “failing    to

calculate          (or        improperly        calculating)           the      [Sentencing]

Guidelines range, treating the Guidelines as mandatory, failing

to     consider      the       [18      U.S.C.]        § 3553(a)      [(2006)]     factors,

selecting      a    sentence          based    on     clearly       erroneous    facts,    or

failing to adequately explain the chosen sentence.”                               Gall, 552

U.S.     at    51.             Finally,        we      “‘consider       the      substantive

reasonableness           of    the    sentence        imposed.’”       United     States   v.

Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S.

at 51).       We presume on appeal that a sentence within a properly

calculated      advisory            Guidelines       range   is     reasonable.      United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v.

United     States,            551     U.S.     338,        346-56     (2007)      (upholding

presumption of reasonableness for within—Guidelines sentence).

              We     first          conclude        that     Zambrano’s        sentence    is

procedurally        reasonable.               Under     U.S.      Sentencing     Guidelines

Manual (“USSG”) § 2L1.2(b)(1)(c) (2009), the base offense level

of eight for illegal reentry is increased by eight additional

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levels for a prior “conviction for an aggravated felony.”                                     An

aggravated felony “has the meaning given that term” in 8 U.S.C.

§ 1101(a)(43)       (2006).        USSG   § 2L1.2        n.3(A).        Under       8   U.S.C.

§ 1101(a)(43)(F) (2006), an aggravated felony is a “crime of

violence (as defined in [18 U.S.C. § 16 (2006)]) for which the

term    of   imprisonment        [is]   at   least       one    year.”         A    crime     of

violence is defined, as relevant here, as “an offense that has

as an element the use, attempted use, or threatened use of force

against the person or property of another.”                         18 U.S.C. § 16.

              In   Carachuri-Rosendo,            the    Supreme       Court     held     that,

when    determining       what    constitutes          an    aggravated        felony,       the

state offense of record cannot be enhanced “ex post” by looking

at   facts    outside      the    offense        of    conviction       to     make     it    an

aggravated felony.          Carachuri-Rosendo, 130 S. Ct. at 2586.                           The

Court     also     held    that    penalties           for     an    aggravated         felony

conviction only apply “when the noncitizen has actually been

convicted of an aggravated felony — not when he merely could

have been convicted of a felony but was not.”                                Id. (internal

quotation      marks      and    alteration       omitted).            Here,       Zambrano’s

assault      and   battery      conviction        was    a    crime     of     violence      as

defined by 18 U.S.C. § 16, and he received a sentence of at

least one year.           The court did not need to reach beyond the

facts of conviction, as was the case in Carachuri-Rosendo, to



                                             5
find   that        Zambrano’s       conviction          fit    the     definition      of    an

aggravated felony.           Therefore, this claim fails.

              Thus, in sentencing Zambrano for his illegal reentry

conviction, the district court properly calculated the advisory

Guidelines         range,    including       the       eight-level       enhancement         for

aggravated felon status, considered the § 3553(a) factors, and

explained its chosen sentence.                   See United States v. Carter, 564

F.3d   325,    330     (4th    Cir.       2009)       (district       court   must    conduct

individualized assessment based on the particular facts of each

case, whether sentence is above, below, or within the Guidelines

range).       Moreover,       the     sentence         is    substantively      reasonable.

The    court        sentenced        Zambrano         to      thirty-eight       months       of

imprisonment,        within     the       advisory      Guidelines       range,      based    on

Zambrano’s extensive criminal history during the time he was

illegally present in the United States.                           The court also stated

that it believed that the sentence was sufficient, but no longer

than necessary, to promote respect for the law and to deter any

further illegal entries.                   Under these circumstances, Zambrano

cannot overcome the presumption of reasonableness accorded his

within-Guidelines sentence.

              We    next    turn     to    the       appeal    from    the    revocation      of

supervised release.             The district court may revoke a term of

supervised     release        when    it    finds       by    a   preponderance       of     the

evidence      that     the     defendant          has       violated     a    condition       of

                                                 6
supervised release.              18 U.S.C. § 3583(e)(3) (2006).                A condition

of Zambrano’s supervised release was that he not reenter the

United States illegally.              Zambrano was charged with a supervised

release violation based on his guilty plea to the charge that he

reentered the United States illegally.

              At     the    revocation       of      supervised        release    hearing,

Zambrano admitted the violation based on this guilty plea, and

the   court    revoked       his    supervised       release.      We       conclude   that

there was sufficient evidence to prove by a preponderance that

Zambrano      violated       a     mandatory        condition     of     his     supervised

release.

              In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the judgment of the district court as to the

illegal reentry conviction and sentence in No. 10-4135 and the

judgment revoking supervised release and imposing a twelve-month

sentence in No. 10-4136.              Counsel has filed a motion to withdraw

from further representation.                 This court requires that counsel

inform    Zambrano,         in    writing,     of    the   right       to   petition    the

Supreme      Court    of    the    United    States     for     further      review.     If

Zambrano 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

                                               7
Zambrano.       We therefore deny the motion to withdraw at this

time.

              We affirm the judgments of the district court in Nos.

10-4135 and 10-4136.         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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