                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4966


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ORLANDO GONZALEZ LOZA,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00085-MR-DLH-1)


Submitted:   July 28, 2014                 Decided:   August 1, 2014


Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Orlando       Gonzalez         Loza       appeals    from    the       fifty-seven

month    sentence     imposed         by   the        district    court      following       his

guilty plea to illegal reentry of a deported alien, in violation

of 8 U.S.C. §§ 1326(a), (b)(2) (2012).                       Loza’s counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

concluding    there       are    no    meritorious           grounds      for      appeal    but

questioning       whether       the    district         court     committed         procedural

error in calculating Loza’s criminal history score and whether

the    district     court   abused         its       discretion    by    not    giving      Loza

credit for time served on his state sentence.                           Loza was notified

of his right to file a supplemental pro se brief but has not

done so.    We affirm.

            We review a sentence for reasonableness, applying “a

deferential       abuse-of-discretion                 standard.”         Gall      v.     United

States, 552 U.S. 38, 41 (2007).                      The court “first ensur[es] that

the district court committed no significant procedural error,

such as failing to [properly] calculate . . . the Guidelines

range, . . . failing to consider the § 3553(a) factors, . . . or

failing to adequately explain the chosen sentence.”                                Id. at 51.

If the Court finds the sentence procedurally reasonable, it also

must    examine     the   substantive            reasonableness         of   the     sentence,

considering “the totality of the circumstances.”                             Id.        We apply

a     presumption    of     reasonableness              to   a    sentence         within    the

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properly     calculated   Guidelines       range.     United    States      v.

Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

            First, Loza argues that the district court improperly

assessed     three   criminal    history   points   for   his   state    drug

conviction for which he was serving time when he was federally

indicted.       Specifically, Loza argues that, because his state

drug trafficking offenses occurred during the commission of the

illegal reentry, they are relevant conduct under U.S. Sentencing

Guidelines Manual § 1B1.3(a)(1)(A) (USSG) (2012), and therefore

could not be assessed criminal history points pursuant to USSG

§ 4A1.2(a)(1).       Prior offenses are part of the same course of

conduct if “they are sufficiently connected or related to each

other as to warrant the conclusion that they are part of a

single episode, spree, or ongoing series of offenses.”                  United

States v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004) (quoting USSG

§ 1B1.3 cmt. n.9(B)).           Factors to be considered “include the

degree     of    similarity     of   the    offenses,     the    regularity

(repetitions) of the offenses, and the time interval between the

offenses.”      Id. (quoting USSG § 1B1.3 cmt. n.9(B)).         We conclude

that Loza’s state conviction for felony cocaine trafficking is

not relevant conduct as to his illegal reentry because the two

crimes are materially different and they were not part of a

common scheme or plan.



                                      3
             Loza   correctly        observes    that    illegal    reentry       is    an

ongoing crime that begins upon entry and continues until the

alien’s      discovery    by     authorities.           See     United    States        v.

Ruelas-Arreguin, 219 F.3d 1056, 1061 (9th Cir. 2000).                       However,

contrary to Loza’s argument, his commission of the state drug

crime while he was committing the illegal reentry does not make

the   drug     crime     relevant      conduct.         See     United    States        v.

Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir. 2009) (holding that

“§ 4A1.2 does not preclude the district court from assigning

criminal history points for sentences received after an illegal

entry,    but       before      an     alien     is     found      by     immigration

authorities”);      United      States   v.     Vargas-Garcia,      434    F.3d    345,

349-52 (5th Cir. 2005) (holding that the continuing nature of an

illegal reentry offense does not prevent the district court from

including other sentences in criminal history).                    Accordingly, we

conclude that the district court did not err in assessing Loza

three criminal history points for his state drug conviction.

             Loza next argues that the district court abused its

discretion by failing to give him credit, in the form of a

downward departure or variance on his federal sentence, for time

served in state custody.              Specifically, Loza argues that, had

the   Government       turned   him    over     to    federal   court     before       the

expiration of his state sentence, the district court could have

imposed his sentences to run concurrently.

                                          4
            Under     USSG     §   5G1.3(c),             in     any   case     involving     an

undischarged term of imprisonment, “the sentence for the instant

offense     may     be    imposed         to        run        concurrently,        partially

concurrently, or consecutively to the prior undischarged term of

imprisonment to achieve a reasonable punishment for the instant

offense.”         Subsection       (c)    does           not,    however,      authorize     a

downward    departure      for     the    instant          offense      for    a   period    of

imprisonment       already       served        on        the     undischarged         term   of

imprisonment.      See USSG § 5C1.3 (cmt. n.3(E).

            We conclude that the district court did not abuse its

discretion in declining to give Loza credit for time served on

the state sentence.            While it is true that, if Loza had been

sentenced for the current offense while he was incarcerated on

the state charges, the district court could have run the federal

sentence concurrent with the state sentence, any suggestion that

the court would have done so in this case is mere speculation.

In fact, the district court here made it clear that Loza did not

deserve a discount on his federal sentence for his unrelated

state sentence.

            In accordance with Anders, we have reviewed the entire

record and have found no meritorious grounds for appeal.                                     We

therefore    affirm      the   district        court’s          judgment.          This   court

requires that counsel inform Loza, in writing, of the right to

petition    the    Supreme     Court     of        the    United      States    for    further

                                               5
review.    If Loza 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 Loza.

               We dispense with oral argument because the facts and

legal    contentions      are   adequately    presented    in   the   materials

before    this    court   and   argument    would   not   aid   the   decisional

process.

                                                                        AFFIRMED




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