                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4626



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


GUILLERMO   CARILLO-PINEDA,      a/k/a      Martin
Carillo-Cuevas,

                                                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-227-MU)


Submitted:   March 30, 2007                    Decided:   July 17, 2007


Before MICHAEL, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Harold Cogdell, Jr., LAW OFFICES OF HAROLD COGDELL, JR., P.C.,
Charlotte, North Carolina, for Appellant.    Anna Mills Wagoner,
United States Attorney, C. Nicks Williams, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Guillermo Carillo-Pineda pled guilty to illegal reentry

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

(2000), and was sentenced to forty-one months in prison.                  Carillo-

Pineda now appeals.      His attorney has filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967), raising one claim

but stating that there are no meritorious grounds for appeal.

Carillo-Pineda    was    advised    of   his   right    to    file    a    pro    se

supplemental brief, but did not file such a brief.                 We affirm.

            Carillo-Pineda’s       guilty      plea    was     knowingly         and

voluntarily entered. Further, the record discloses compliance with

Fed. R. Crim. P. 11.      There was a factual basis for the plea, and

Carillo-Pineda readily admitted his guilt. We therefore affirm the

conviction.

            Carillo-Pineda’s       probation    officer      assigned      a   base

offense level of 8, see U.S. Sentencing Guidelines Manual § 2L1.1

(2003).     Sixteen levels were added because Carillo-Pineda was

deported after a conviction of a crime of violence.                       See USSG

§ 2L1.2(b)(1)(A)(ii).      Three levels were subtracted for acceptance

of responsibility.      See USSG § 3E1.1.      His total offense level was

21,   his   criminal    history    category    was    II,    and   his    advisory

guideline range was 41-51 months. The district court sentenced him

to forty-one months in prison.




                                     - 2 -
              Carillo-Pineda contends for the first time on appeal that

his prior conviction in Texas for retaliation does not constitute

a crime of violence as contemplated by USSG § 2L1.2(b)(1)(A)(ii).

Because he did not raise this claim below, our review is for plain

error.    See United States v. Olano, 507 U.S. 725, 731-32 (1993).

To establish plain error, Carillo-Pineda must show that an error

occurred, that it was plain, and that it affected his substantial

rights.       If   Carillo-Pineda       establishes       plain   error,   we    may

recognize it or not, in our discretion.               See id. at 732.

              To determine if a crime is a crime of violence, a court

generally     looks   only   to   the    fact    of   the    conviction    and   the

statutory definition of the offense.             Taylor v. United States, 495

U.S. 575, 602 (1990).        In cases where a predicate felony might be

committed with or without the use, attempted use, or threatened use

of   force,    a   court   must   look    to    various     approved   sources    to

determine if the prior offense qualifies for an enhancement.

Shepard v. United States, 544 U.S. 12, 20 (2005).1




      1
      Because there are no cases from this circuit addressing
“crime of violence” under USSG § 2L1.2(b)(1)(A)(ii), we refer to
cases interpreting the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (2000), which provides for a sentencing enhancement for a
prior conviction that was a “violent felony.” “Violent felony”
under the ACCA and “crime of violence” under § 2L1.2(b)(1)(A)(ii)
include certain specific crimes as well as any felony that “has as
an element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(I);
USSG § 2L1.2 cmt. n.1(B)(iii).

                                        - 3 -
           In Texas, retaliation does not necessarily involve the

use of force against the person,2 and the district court therefore

had to look beyond the fact of conviction and the relevant statute

to decide if the enhancement was warranted.                   The district court

applied the enhancement based on the description of the offense in

the presentence report.            That description appears to have been

taken from a police report, a non-approved Shepard source.                         We

decline to recognize this error, however, because Carillo-Pineda

“cannot   show     prejudice       from    a    finding      of    fact,   made    in

contravention     of   the    Sixth       Amendment,    .    .    .   [that]    would

nevertheless have been found by the court in the absence of the

error.”   See United States v. Allen, 446 F.3d 522, 531 (4th Cir.

2006).    Had    the   district     court      relied   on   the      indictment--an

approved Shepard source--it would have found that the retaliation

conviction      constituted    a     crime     of   violence       justifying     the

enhancement under USSG § 2L1.2(b)(1)(A)(ii).3

             In accordance with Anders, we have reviewed the entire

record    for    any   meritorious         issues    and     have      found    none.

Accordingly, we affirm.        This court requires counsel to inform his

client, in writing, of his right to petition the Supreme Court of


     2
      See Tex. Penal Code Ann. § 36.06.
     3
      The indictment charged that Carillo-Pineda “did . . .
intentionally and knowingly harm or threaten to harm Concepcion
Rodriguez by an unlawful act, to wit: killing Concepcion Rodriguez,
in retaliation for or on account of . . . [her status] as a person
who reported a crime.”

                                      - 4 -
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 this court for leave to

withdraw from representation.   Counsel’s motion must state that a

copy of the motion was served on the client.   We dispense with oral

argument because the facts and legal contentions are adequately set

forth in the materials before the court and argument would not aid

the decisional process.



                                                           AFFIRMED




                                - 5 -
