UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 98-4902
ARTURO REYES-VALENCIA, a/k/a
Carlos Palomares, a/k/a Arturo
Gutierrez, a/k/a Alan Juarez,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-98-164)

Submitted: August 10, 1999

Decided: September 23, 1999

Before MURNAGHAN, NIEMEYER, and HAMILTON,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Arnold L.
Husser, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Arturo Reyes-Valencia appeals his guidelines sentence imposed for
his conviction for unlawful reentry after deportation. We affirm.

Reyes-Valencia, a citizen of Mexico, was convicted in 1985 in Cal-
ifornia state court of felony possession of marijuana for sale, in viola-
tion of Cal. Health & Safety Code § 11359 (West 1991). He was
deported on the basis of this conviction in 1989 and again in 1995.
In June 1998, he was arrested in North Carolina and pleaded guilty
to being an alien who had previously been deported after a conviction
for an aggravated felony and who had reentered the United States
without prior permission in violation of 8 U.S.C.A.§§ 1326(a), (b)
(West 1999).1

In her presentence report, the probation officer started from a base
level of eight under U.S. Sentencing Guidelines Manual § 2L1.2(a)
(1998), "Unlawfully Entering or Remaining in the United States." To
this she added sixteen offense levels because Reyes-Valencia was
previously deported for the 1985 California conviction, "an aggra-
vated felony," which is a specific offense characteristic under USSG
§ 2L1.2(b)(1)(A). A three-level reduction in offense level was recom-
mended for the defendant's acceptance of responsibility. See USSG
§ 3E1.1(a), (b). A total of twenty-one criminal history points placed
Reyes-Valencia in Category VI, and the resulting guidelines sentenc-
ing range was seventy-seven to ninety-six months.
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1 In an opinion issued a few months prior to Reyes-Valencia's arrest,
the Supreme Court held that § 1326(b)(2), which authorizes a maximum
penalty of twenty years if a defendant convicted of illegal reentry under
subsection (a) had a previous conviction for an"aggravated felony," is
a penalty provision and, therefore, it is not necessary to charge the fact
of the earlier conviction in the indictment. See Almendarez-Torres v.
United States, 523 U.S. 224 (1998).

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Reyes-Valencia objected to the application of § 2L1.2(b)(1)(A) on
the ground that the characterization of the California conviction,
which involved only 31.9 grams of marijuana,2 as an "aggravated fel-
ony" was "an impermissibly expansive interpretation" of the term
because it treated him no differently from one who was convicted of
more serious drug offenses. (J.A. 17). The court accepted the findings
and guidelines calculations contained in the presentence report. How-
ever, in addition to the approach set forth in the presentence report,
the district court announced an alternative route to the same sentenc-
ing range. Agreeing that the sixteen-level increase triggered by the
California conviction overstated the seriousness of that offense, the
court departed downward one offense level; however, this downward
departure was offset by a one-level increase on the ground that Crimi-
nal History Category VI understated the seriousness of the defen-
dant's criminal record. The court then sentenced Reyes-Valencia to
ninety-four months' imprisonment. On appeal, Reyes-Valencia offers
a refined version of the argument he advanced at the sentencing hearing.3

Reyes-Valencia concedes that his California drug conviction falls
within the applicable definition of "aggravated felony" found in 8
U.S.C. § 1101(a)(43)(B). See, e.g., United States v. Polanco, 29 F.3d
35, 38 (2d Cir. 1994). Using the analysis outlined in Solem v. Helm,
463 U.S. 277 (1983), Appellant argues that the Guidelines' imposition
of an increase of sixteen offense levels regardless of the relative seri-
ousness of the predicate "aggravated" felony constitutes an unconsti-
tutionally disproportionate penalty. We disagree.
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2 In his opening brief, appellant often uses the figure "three and one-
half grams." See Appellant's br. at 4, 12, 14 and 15. The correct figure
is 31.9 grams. (J.A. 55).
3 An application note in effect since November 1, 1997, suggests that
a departure from the sixteen-level enhancement under§ 2L1.1(b)(1)(A)
"may be warranted based on the seriousness of the aggravated felony."
USSG § 2L1.1, comment. (n.5). The possibility of such a departure was
noted in the presentence report. (J.A. 69). Appellant, however, is pre-
cluded from appealing the extent of the departure. See United States v.
Hill, 70 F.3d 321, 324 ("Under [18 U.S.C.] 3742(a), we . . . lack jurisdic-
tion to review the extent of the district court's departure, except in
instances in which the departure decision resulted in a sentence imposed
in violation of law or resulted from an incorrect application of the Guide-
lines.") (emphasis in original).

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Appellant's reliance on Solem, a case that involved a sentence of
life without possibility of parole, is misplaced. It is doubtful that a
proportionality review is ever appropriate in cases not involving
either a death sentence or a sentence of life without possibility of
parole. See, e.g., Bevarati v. Smith, 120 F.3d 500, 504-05 (4th Cir.
1997) ("[W]e conclude that [the inmates'] argument must fail on the
basis of our repeated holdings that outside the context of a capital sen-
tence a proportionality review is necessary only with respect to sen-
tences of life imprisonment without the possibility of parole").
However, even if a Solem proportionality review were still available
in some cases not involving at least a life sentence, the review of such
a case involves at most whether the sentence is"grossly dispropor-
tionate" to the offense. See United States v. Kratsas, 45 F.3d 63, 69
(4th Cir. 1995) (Niemeyer, J., concurring in the judgment). That por-
tion of the sentence attributable to the enhancement for the predicate
offense--a drug trafficking felony--simply "does not give rise to an
inference of gross disproportionality" necessitating a comparative
analysis of Reyes-Valencia's sentence with other sentences for similar
conduct. See Harmeline v. Michigan, 501 U.S. 957, 1005 (1991)
(Kennedy, J., concurring).

Accordingly, we affirm Reyes-Valencia's sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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