                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4471



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


OSCAR GARDUNO SOTELO,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CR-03-121)


Submitted:   March 31, 2006                   Decided:   May 1, 2006


Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


H. David O’Donnell, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Nancy S. Healey, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Oscar Garduno Sotelo, a Mexican citizen, appeals his

forty-six month sentence following his guilty plea to entering or

being   found   in   the   United   States   after   having   been   removed

subsequent to a conviction for an aggravated felony without first

obtaining the permission of the Attorney General, in violation of

8 U.S.C. § 1326(a)(2)(A), (b)(2) (2000).         We affirm.

           Sotelo first contends the district court erred under U.S.

Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A) (2003) in

ruling his prior felony conviction for carnal knowledge, without

force, of a child between thirteen and fifteen years of age was a

crime of violence and applying a sixteen-level enhancement.              We

review the district court’s determination de novo.              See United

States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). Acknowledging

that a crime of violence includes “sexual abuse of a minor,” see

USSG § 2L1.2(b)(1) comment. (n.1(B)(iii)), Sotelo argues that

because the statute of conviction did not expressly use the term,

we should “look behind the categorical approach to determine

whether elements of [the] prior offense involved conduct presenting

a serious risk of physical injury to another.”           However, because

the offense categorically constitutes “sexual abuse of a minor,”

see United States v. Pereira-Salmeron, 337 F.3d 1148, 1155 (9th

Cir. 2003), we conclude the district court did not err.




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           Sotelo    next   contends   the   district   court   erred   by

concluding he committed the instant offense while under a criminal

justice sentence and adding two criminal history points under USSG

§ 4A1.1(d).*    We review a district court’s factual findings at

sentencing for clear error and its legal conclusions, including its

interpretation and application of the sentencing guidelines, de

novo.    United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.

1989).

           Sotelo admitted that he returned to the United States

shortly after his 1997 felony conviction for which he received a

two-year prison sentence that was suspended on the conditions that

he “be of good behavior” and obey all state and federal laws.

However, he contends the sentence was not a “criminal justice

sentence” because the sentencing court did not expressly use the

term “probation,” and even if he was under a probationary sentence,

he did not commit any part of the instant offense during his

probationary term.    We disagree.

           The district court did not err in concluding Sotelo’s

suspended sentence constituted a criminal justice sentence based on

the undisputed terms of the sentencing order.            Moreover, even

though Sotelo’s indictment alleged he was found in the United



     *
      “Two points are added if the defendant committed any part of
the instant offense (i.e., any relevant conduct) while under any
criminal justice sentence,” including “unsupervised probation.”
USSG § 4A1.1(d) comment. (n.4).

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States in 2003, the court did not err in ruling that it was not

bound by the terms of the indictment when applying the guidelines

and concluding his reentry was relevant conduct for the instant

offense.   The district court properly relied on Sotelo’s admission

that he reentered the United States during the two-year period.

Moreover, “[b]ecause the crime of being ‘found in’ the United

States is not complete until an alien is discovered by immigration

authorities, it is considered a ‘continuing offense.’”               United

States v. Godinez-Rabadan, 289 F.3d 630, 632 (9th Cir. 2002)

(citations omitted).

            Finally, Sotelo contends the district court committed

Sixth Amendment error under United States v. Booker, 543 U.S. 220

(2005),    and   we   should   remand   for   resentencing   under   United

States v. Hughes, 401 F.3d 540 (4th Cir. 2005).        Sotelo’s sentence

was imposed before Booker issued, and he did not raise objections

to his sentence in the district court based on the mandatory nature

of the sentencing guidelines or the district court’s application of

sentencing enhancements based on facts not admitted by him or found

by the jury beyond a reasonable doubt.           We therefore review his

sentence for plain error.      See Hughes, 401 F.3d at 546-60.       Because

we conclude the district court was not required to resolve any

disputed facts about Sotelo’s prior conviction to reach its legal

conclusions under the sentencing guidelines, we find there was no

Sixth Amendment error. See United States v. Thompson, 421 F.3d 278


                                   - 4 -
(4th Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006); United

States v. Collins, 412 F.3d 515 (4th Cir. 2005).

             The determination as to whether Sotelo’s prior felony

conviction categorically constituted sexual abuse of a minor was a

legal determination based on the definition of the offense that

inhered in the fact of conviction.         Moreover, the district court

was not required to resolve any disputed facts in concluding

Sotelo’s   two-year    suspended   sentence    was   a   criminal   justice

sentence and that Sotelo returned to the United States during the

two-year term.    The terms of the sentencing order were undisputed,

and the district court’s construction of those terms and the

guidelines were legal conclusions.         See Thompson, 421 F.3d at 285

(neither Booker nor Shepard v. United States, 544 U.S. 13 (2005),

“transmogrify what have always been questions of law into questions

of fact”).     Although the question of when Sotelo returned was a

factual question, Sotelo admitted the fact.

             Even if the district court’s ruling that Sotelo committed

the instant offense during a criminal justice sentence constituted

a finding of disputed fact, there was no prejudice resulting from

the error.    See United States v. Evans, 416 F.3d 298, 300 n.4 (4th

Cir. 2005).     Without a reduction for acceptance of responsibility

or added criminal history points, Sotelo’s sentencing guideline

range would have been fifty-seven to seventy-one months in prison.

While the district court unwittingly committed plain error by


                                   - 5 -
imposing a sentence under the then-existing mandatory guidelines

regime, the district court expressly noted its conclusion that

Sotelo’s conduct properly fell within the guideline range.   There

is thus no nonspeculative basis in the record for concluding Sotelo

was prejudiced by the error.   See United States v. White, 405 F.3d

208 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

          Accordingly, we affirm.   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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