                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5141


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL ALEXANDER BARILLAS, a/k/a Jose Fermin Vasquez,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:10-cr-00753-AW-1)


Submitted:   July 31, 2012                 Decided:     August 14, 2012


Before WILKINSON and    NIEMEYER,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Elita C. Amato, LAW OFFICE OF ELITA C. AMATO, Arlington,
Virginia, for Appellant.     Rod J. Rosenstein, United States
Attorney, Paul K. Nitze, Special Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Pursuant     to    a    plea       agreement,     Michael      Alexander

Barillas pled guilty to unauthorized reentry of a deported alien

after an aggravated felony conviction, in violation of 8 U.S.C.

§ 1326(a), (b) (2006).            The district court sentenced Barillas to

seventy-two       months’       imprisonment,       near   the    low   end    of    the

advisory Guidelines range.             Barillas timely appealed.

               The district court increased Barillas’ offense level

under U.S. Sentencing Guidelines Manual § 2L1.2(B)(1)(A) (2010).

This       provision    calls    for   a   sixteen-level       enhancement      if   the

defendant was deported after he was convicted of a crime of

violence.         The     district     court       found   that    Barillas’     prior

Maryland second degree assault conviction qualified as a crime

of violence.       On appeal, Barillas disputes this finding. 1

               Barillas     first      argues       that   the     district      court

erroneously       employed       the    modified      categorical       approach      in

determining that his Maryland second degree assault conviction

qualified as a crime of violence.                  His argument is foreclosed by

       1
        The district court alternatively found that Barillas
qualified    for    the    sixteen-level    enhancement    under
§ 2L1.2(b)(1)(A) based on his 1994 California drug conviction.
Barillas does not challenge the district court’s alternate
finding on appeal.   Because we agree with the district court’s
finding that Barillas’ Maryland second degree assault conviction
qualifies as a crime of violence, we need not consider whether
Barillas has forfeited appellate review of the district court’s
alternate finding.



                                              2
this Court’s recent decisions in United States v. Donnell, 661

F.3d 890, 893 (4th Cir. 2011), and United States v. Taylor, 659

F.3d 339, 346 (4th Cir. 2011), cert. denied, 132 S. Ct. 1817

(2012).

            Next, Barillas argues that, even if the court properly

applied the modified categorical approach to determine that his

Maryland second degree assault conviction qualified as a crime

of violence, under our decision in United States v. Alston, 611

F.3d 219, 226 (4th Cir. 2010), the district court improperly

relied on the guilty plea colloquy in the state proceeding to

conclude that his assault conviction was a crime of violence.

Unlike the defendant in Alston, however, Barillas did not enter

an Alford 2 plea in the state proceeding.    We recently recognized

this distinction and confirmed that a court may depend on a

traditional guilty plea to determine whether a prior conviction

qualifies as a predicate offense.     Taylor, 659 F.3d at 347.   We

find no error in the district court’s finding that, based on the

plea hearing transcript from the Maryland second degree assault

proceeding, Barillas’ state conviction qualified as a crime of

violence.     Therefore, we conclude that Barillas’ argument is

unavailing.




     2
         North Carolina v. Alford, 400 U.S. 25 (1970).



                                  3
              Finally,   Barillas     contends      that       the   district     court

erred    by    concluding   that   he   did   not    qualify         for   a    downward

departure based on cultural assimilation.                      The district court

has the discretion to depart downward if:

     (A) the defendant formed cultural ties primarily with
     the United States from having resided continuously in
     the United States from childhood, (B) those cultural
     ties   provided   the   primary  motivation  for   the
     defendant’s illegal reentry or continued presence in
     the United States, and (C) such departure is not
     likely to increase the risk to the public from further
     crimes of the defendant.

USSG § 2L1.2 cmt. n.8.         However, “‛[w]e lack the authority to

review    a    sentencing   court’s     denial      of   a     downward        departure

unless the court failed to understand its authority to do so’.”

United States v. Hackley, 662 F.3d 671, 686 (4th Cir. 2011)

(quoting United States v. Brewer, 520 F.3d 367, 371 (4th Cir.

2008)) (alteration in original), cert. denied, 132 S. Ct. 1936

(2012).       Barillas does not argue, and the record does not show,

that the district court failed to recognize its authority to

depart downward.         Therefore, we decline to review the district

court’s denial of Barillas’ motion for a downward departure.

              For these reasons, we affirm Barillas’ sentence. 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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