                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-5259



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


ALFREDO MARTINEZ-VALDEZ,     a/k/a   Jose   Luis
Martinez,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00130-NCT)


Submitted:   July 31, 2007                  Decided:   August 17, 2007


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


Affirmed by unpublished per curiam opinion.


C. Connor Crook, BOYLE, BAIN, REBACK & SLAYTON, Charlottesville,
Virginia, for Appellant. Angela Hewlett Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Alfredo Martinez-Valdez appeals from his conviction and

thirty-four month sentence following his guilty plea to illegal

reentry into the United States after removal for an aggravated

felony,    in    violation    of    8   U.S.C.   §   1326(a),     (b)(2)   (2000).

Martinez-Valdez’s counsel filed a brief pursuant to Anders v.

California,      386   U.S.   738    (1967),     stating   that    there   are   no

meritorious issues for appeal, but raising the issue of whether the

district court erred by failing to depart from the Sentencing

Guidelines range. Martinez-Valdez was given an opportunity to file

a supplemental pro se brief, but he has not done so.

            At sentencing, two points were added to Martinez-Valdez’s

criminal history score because he committed the instant offense

while on probation.*       According to the presentence report, a bench

warrant was issued in 1998 due to Martinez-Valdez’s failure to

comply with the terms of his probation.              The bench warrant had not

been recalled. While Martinez-Valdez initially took issue with the

two-point enhancement, he conceded that the calculation was in

accordance with the Guidelines.              However, he did ask that the

staleness of the bench warrant be considered by the court as a

ground for departure from the Guidelines range. The district court

declined    to    depart   and      sentenced    Martinez-Valdez     within      the

Guidelines range of 30 to 37 months’ incarceration.                 The district


     *
      See U.S. Sentencing Guidelines Manual § 4A1.1(d) (2005).

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court did not mistakenly believe it lacked jurisdiction to depart;

therefore,      its    decision      not     to    depart       from    the   Sentencing

Guidelines range is not subject to appellate review.                          See United

States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004) (citing United

States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990)); see also

United    States      v.   Cooper,     437    F.3d       324,   333     (3d   Cir.   2006)

(collecting cases adopting this rule following United States v.

Booker, 543 U.S. 220 (2005)).                Further, to the extent Martinez-

Valdez challenges the length of his sentence, we discern no reason

to conclude that the district court’s decision to impose a sentence

within the Guidelines range was unreasonable.                     See Rita v. United

States, 127 S. Ct. 2456 (2007).

            In accordance with Anders, we have reviewed the record in

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

therefore affirm Martinez-Valdez’s conviction and sentence.                          This

court requires 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




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materials   before   the   court   and     argument   would   not   aid   the

decisional process.



                                                                    AFFIRMED




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