                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4921


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ANTONIO AUGUSTINE-NERI,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:07-cr-00463-REP-1)


Submitted:    August 4, 2009                 Decided:   August 17, 2009


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


Affirmed by unpublished per curiam opinion.


Robert L. Flax, Richmond, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Richard D. Cooke, S.
David Schiller, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Antonio       Augustine-Neri      was   convicted    after     a    bench

trial of illegally reentering the United States after having

previously      been     deported      following     a     conviction     for      an

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

(2006).      The    district   court     sentenced       Augustine-Neri       to   125

months of imprisonment and Augustine-Neri now appeals.                     Finding

no error, we affirm.

           Augustine-Neri first challenges the district court’s

application of a sixteen-level upward adjustment in calculating

the advisory guidelines range.               See U.S. Sentencing Guidelines

Manual (“USSG”) § 2L1.2(b)(1)(A) (2007).                  Augustine-Neri argues

that since prior convictions for which a defendant completed his

term of imprisonment more than fifteen years prior to the date

of the offense of conviction are not considered in calculating

criminal history under the guidelines, such convictions should

likewise not be considered in determining the applicable offense

level   under      the   guidelines.      See   USSG     § 4A1.2.       Therefore,

Augustine-Neri argues, since he completed his sentences for his

prior convictions for crimes of violence more than fifteen years

prior to the date of his arrest for the instant offense, these

prior convictions should not be considered in determining the

applicable offense level.



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               Because        Augustine-Neri              failed        to     challenge        the

guidelines calculation in the district court, we review this

claim for plain error.               See United States v. Muhammad, 478 F.3d

247,     249     (4th       Cir.     2007).           “To     establish         plain        error,

[Augustine-Neri]            must   show     that      an    error       occurred,      that     the

error was plain, and that the error affected his substantial

rights.”         Id.          Even     if       Augustine-Neri               satisfies        these

requirements,          “correction        of    the        error    remains         within     [the

Court’s] discretion, which [the Court] should not exercise . . .

unless the error seriously affect[s] the fairness, integrity or

public     reputation         of     judicial        proceedings.”              Id.    (internal

quotation       marks       and    citation          omitted).      We       have     thoroughly

reviewed the record and conclude that Augustine-Neri has failed

to demonstrate that the district court erred in calculating the

advisory guidelines range by including the challenged offenses

under USSG § 2L1.2(b)(1)(A)(ii).

               Augustine-Neri         next       challenges         the        indictment       and

sentence, arguing that the district court violated his right

under     the       Sixth    Amendment         to    a     jury     trial       because       prior

convictions were relied upon to prove the existence of a prior

aggravated felony in the indictment and to increase the offense

level.         Augustine-Neri         did      not    object       to    the    indictment       or

sentence       on    the    grounds    that         they    violated         Apprendi     v.   New

Jersey,     530       U.S.    466     (2000)         in     the    district         court      and,

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therefore, this issue is reviewed for plain error.                                    See United

States     v.    Olano,       507       U.S.    725,   731-32      (1993).          However,         as

Augustine-Neri waived his right to a jury trial, the claim as to

the indictment is without merit.                       Further, he admitted the prior

convictions.

                In        addition,       the    mere       fact    that       the       increased

guidelines range is based on the fact of a prior conviction

forecloses           Augustine-Neri’s            argument.          As       this     court         has

repeatedly       recognized,            “the    Sixth       Amendment     (as       well       as   due

process)        does       not    demand        that    the    mere      fact       of     a    prior

conviction       used        as   a     basis    for    a    sentencing       enhancement            be

pleaded     in       an    indictment      and     submitted       to    a    jury       for    proof

beyond a reasonable doubt.”                      United States v. Cheek, 415 F.3d

349, 352 (4th Cir. 2005).                       Therefore, the Government did not

have to include the fact of Augustine-Neri’s prior convictions

in   the    indictment            and    was    not    required     to       prove       the    prior

convictions beyond a reasonable doubt.                         Moreover, Augustine-Neri

was not exposed to a sentence beyond the prescribed statutory

maximum.        See Apprendi, 530 U.S. at 490 (“Other than the fact of

a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted

to   a     jury,      and     proved       beyond      a    reasonable        doubt.”).             We

therefore find no plain error.



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             Finally, Augustine-Neri argues that the district court

erred in not granting a downward departure or varying from the

advisory      guidelines     range      based   on    Augustine-Neri’s      family

obligations, age, and the relative age of his prior convictions

for violent felonies.            Because Augustine-Neri did not object to

the guidelines calculation and did not move for a variance or

downward departure from the guidelines range in the district

court, we review this issue for plain error.                    See Muhammad, 478

F.3d    at   249.    We     have      thoroughly     reviewed    the   record    and

conclude that Augustine-Neri has failed to demonstrate that the

district     court   erred       in   sentencing     him   within   the   advisory

guidelines range.         To the extent he attempts to argue that his

sentence was unreasonable, we conclude that the district court’s

sentence was reasonable.              See Rita v. United States, 551 U.S.

338, ___, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption

of     reasonableness      for     within-guidelines       sentence);     Gall    v.

United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007) (we

review first for procedural error and then consider substantive

reasonableness of sentence imposed).

             Accordingly, we affirm the judgment of the district

court.       We dispense with oral argument because the facts and

legal    contentions      are    adequately     presented     in    the   materials




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before the court and argument would not aid in the decisional

process.



                                                     AFFIRMED




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