                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4808


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DOUGLAS RENE AYALA,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:10-cr-00250-AW-1)


Submitted:   March 29, 2012                 Decided:   April 2, 2012


Before WILKINSON, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ron Earnest, LAW OFFICE OF RON EARNEST, Riverdale, Maryland, for
Appellant.   Rod J. Rosenstein, United States Attorney, William
D.   Moomau,   Assistant  United  States   Attorney,  Greenbelt,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Douglas Rene Ayala pled guilty to illegal reentry by a

previously deported aggravated felon in violation of 8 U.S.C.

§ 1326(a), (b)(2) (2006).              Ayala appeals his conviction and the

fifty-one month sentence imposed by the district court on three

grounds: (1) that the district court plainly erred in failing

sua sponte to order withdrawal of Ayala’s guilty plea; (2) that

the district court plainly erred in enhancing Ayala’s offense

level based on a finding that his prior Maryland conviction for

second    degree     assault     was    a    “crime      of   violence”   under   U.S.

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

(2010); and (3) that the sentence is substantively unreasonable

because      the   district     court       did    not   adequately    consider   the

circumstances of the offense.               We affirm.

              Because the first two claims were not preserved in the

district court, we review them for plain error.                        “To establish

plain error, [an appellant] must show that an error occurred,

that   the    error    was    plain,     and      that   the   error   affected    his

substantial rights.”            United States v. Muhammad, 478 F.3d 247,

249 (4th Cir. 2007).          Neither claim meets this high standard.

              As to the first claim, the district court properly

informed Ayala at the guilty plea proceeding that he faced up to

twenty    years     imprisonment       for       his   offense.    The    court   then

reviewed the offense level and criminal history category Ayala

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would   likely        earn,     but     emphasized       that     there       were        “no

predictions as to what the sentence will be.”                     Ayala assured the

court that no one had forecast that he would receive a specific

sentence.      At sentencing, Ayala’s criminal history category was

one   level    higher    than       that     discussed   at    the    plea    colloquy.

Although Ayala did not move the district court to withdraw his

guilty plea, he argues on appeal that the district court should

sua   sponte    have    ordered       such    a   withdrawal     in   light        of    this

disparity.

              We reject this argument.              The district court informed

Ayala during the Fed. R. Crim. P. 11 hearing of the twenty-year

maximum penalty, that he could be sentenced up to that amount,

and that no one could predict the length of his sentence.                                The

district court also ensured that no one had made any guarantees

to Ayala as to the length of his sentence.                      Ayala concedes that

the Guidelines range applied to him was correctly calculated.

Accordingly, this claim entitles him to no relief.

              Ayala     next         challenges       the       district           court’s

characterization        of    his    prior    Maryland    conviction         for    second

degree assault as a crime of violence.                      Again, we review his

claim for plain error.              See United States v. Strieper, 666 F.3d

288, 295      (4th    Cir.    2012)    (applying     plain      error   review          where

appellant failed to object to enhancement at sentencing).



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             Under       USSG    § 2L1.2(b)(1)(A)(ii),          a     defendant’s       base

offense level is enhanced sixteen levels if he reentered the

United States after having been convicted of a felony “crime of

violence.”        A “crime of violence” under this provision includes

an offense under state law “that has as an element the use,

attempted use, or threatened use of physical force against the

person of another.”             USSG § 2L1.2, cmt. n.1(B)(iii).

             Upon reviewing the record, we find no error.                           We have

held    that,     because        the   offense      in   question,         second    degree

assault under Maryland law, cannot categorically be found to be

a   crime    of   violence,       a    district     court     may    use    the     modified

categorical approach and look beyond the statutory elements of

the    crime      to     the      charging        document,     the     plea        colloquy

transcripts, or the plea agreement to determine whether that

offense involved the use of physical force against the person of

another.      United States v. Donnell, 661 F.3d 890, 893 (4th Cir.

2011);      Shepard v. United States, 544 U.S. 13, 26 (2005).                          Here,

the district court properly consulted the                      state transcripts of

the    guilty     plea    colloquy      and   determined       that     Ayala       admitted

using physical force against the victim.                            Therefore, Ayala’s

prior Maryland conviction for second degree assault constituted

a crime of violence, and the district court properly applied the

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



                                              4
            Finally,          Ayala         challenges        the         substantive

reasonableness of his sentence, arguing that the district court

failed to accord sufficient weight to the circumstances of the

offense    and    his    history      and   characteristics.           We    review      a

sentence    for       reasonableness,       using   an      abuse    of     discretion

standard of review.           Gall v. United States, 552 U.S. 38, 51

(2007).     In       assessing    the   substantive       reasonableness          of   the

sentence,       we     take      into    account      the     totality        of       the

circumstances.         Id.    A sentence within the properly calculated

Guidelines range is presumptively reasonable.                     United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007).

            After reviewing the record, we conclude that Ayala’s

sentence    is       substantively      reasonable.         The     fifty-one      month

sentence is at the low end of the properly calculated Guidelines

range, and Ayala has offered nothing to rebut the presumption of

reasonableness accorded that sentence.

            Accordingly, we affirm the district court’s judgment.

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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