                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4843



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


CARLOS DOMINGUEZ-BENAVIDES,

                                                 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-04-123)


Submitted:   August 31, 2005                 Decided:   November 1, 2005


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William S. Trivette, 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Unpublished opinions are not binding precedent in this circuit.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:

           Carlos Dominguez-Benavides appeals from his forty-two-

month sentence imposed pursuant to a guilty plea to one count of

reentry by a deported alien, in violation of 8 U.S.C. § 1326(a)

(2000).   On appeal, Dominguez-Benavides’ counsel filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), stating

that in his opinion there were no meritorious issues for appeal,

but raising the issue as to whether the district court erred under

Blakely v. Washington, 542 U.S. 296 (2004), in computing his

criminal history points and in imposing a sixteen-level enhancement

based on a prior drug trafficking conviction.            After the Supreme

Court’s issuance of United States v. Booker, 125 S. Ct. 738 (2005),

counsel filed a supplemental brief arguing that Dominguez-Benavides

was erroneously sentenced under a mandatory application of the

federal sentencing guidelines.            The Government has responded.

Although informed of his right to file a pro se brief, Dominguez-

Benavides has not done so.

           Dominguez-Benavides         first   claims   that   the   district

court’s calculation of his criminal history category and its

imposition    of   a   sixteen-level     enhancement    for    a   prior   drug

trafficking conviction for which the sentence exceeded thirteen

months    violated     Blakely   and    subsequently    Booker.       Because

Dominguez-Benavides preserved his objection at sentencing on both

grounds, we review for harmless error.


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            We find no Sixth Amendment error in Dominguez-Benavides’

sentence.     Based on the convictions listed in the presentence

report, the district court established a criminal history category

of II, and assessed a sixteen-level enhancement for having been

previously deported after a conviction for a felony that is a drug

trafficking   offense   for   which   the   sentence    imposed     exceeded

thirteen    months.     See    U.S.   Sentencing       Guidelines     Manual

§ 2L1.2(b)(1)(A)(i) (2003).

            In Shepard v. United States, 125 S. Ct. 1254 (2005), the

Supreme Court instructed that Sixth Amendment protections apply to

disputed facts about a prior conviction that are not evident from

“the conclusive significance of a prior judicial record.”             Id. at

1262-63. However, Dominguez-Benavides did not contest his criminal

history or any particular prior conviction.        See United States v.

Collins, 412 F.3d 515, 522-23 (4th Cir. 2005) (finding no Sixth

Amendment violation where nature and separateness of predicate

offenses for career offender status was undisputed); cf. United

States v. Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding

that district court’s reliance on disputed facts about prior

conviction to determine that it was a crime of violence violated

the Sixth Amendment).    Furthermore, the prior conviction on which

the sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)(i) was

based was clearly pled in the indictment.          The district court’s

finding that the prior conviction resulted in a sentence that


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exceeded thirteen months is not the type of fact found outside the

indictment     that     is     “too      far   removed    from     the   conclusive

significance of a prior judicial record.”                Washington, 404 F.3d at

842 (citing Shepard, 125 S. Ct. at 1262).                 We therefore conclude

that the district court’s determination of Dominguez-Benavides’

sentence did not violate his Sixth Amendment rights.

          In his supplemental brief, Dominguez-Benavides argues

that under Booker, the district court erred in failing to treat the

guidelines as advisory. Because Dominguez-Benavides did not object

below to the mandatory application of the guidelines, we review for

plain error.*       United States v. White, 405 F.3d 208, 215 (4th Cir.

2005).         As     Dominguez-Benavides           fails     to     present    any

non-speculative evidence or argument demonstrating that he would

have received a lower sentence had the district court appreciated

that the guidelines were not mandatory, we find that the district

court’s error of sentencing Dominguez-Benavides under a mandatory

guidelines     scheme        did   not     affect   his     substantial    rights.

Accordingly, we find no plain error.

             As required by Anders, we have reviewed the entire record

and have found no meritorious issue for appeal.                      We therefore



     *
      Dominguez-Benavides asserts that this issue was properly
preserved based on his objection under Blakely that was raised
before the district court. We find, however, that his objection
was narrowly tailored to the calculation of his criminal history
category and the imposition of the sixteen-level enhancement under
USSG § 2L1.2(b)(1)(A)(i).

                                          - 4 -
affirm Dominguez-Benavides’ sentence.    This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review.      If the

client 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 the client.        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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