                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-5017



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


WILSON REYNALDO MORENO-DELEON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CR-04-212)


Submitted:   July 31, 2006             Decided:     September 5, 2006


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary E. Maguire, Meghan S. Skelton, Assistant Federal Public
Defenders, Richmond, Virginia, for Appellant. Michael J. Elston,
Michael C. Wallace, Sr., Assistant United States Attorneys,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Wilson    Moreno-Deleon     appeals     his    fifty-seven-month

sentence imposed after pleading guilty to one count of violating 8

U.S.C. § 1326(b)(4) (2000), returning to the United States after

having been deported.    We affirm.

          Citing United States v. Booker, 543 U.S. 220 (2005),

Moreno-Deleon asserts that the district court sentenced him in

violation of the Sixth Amendment because the court applied a

sixteen-level enhancement under U.S. Sentencing Guidelines Manual

§ 2L1.2(b)(1)(A)(ii) (2003), based upon his prior North Carolina

second-degree    kidnapping   conviction    that      the   district   court

concluded was a crime of violence for sentencing purposes.                We

review this claim for harmless error because Moreno-Deleon objected

to the enhancement at sentencing based on Blakely v. Washington,

542 U.S. 296 (2004).    See United States v. Rodriguez, 433 F.3d 411,

415-16 (4th Cir. 2006) (stating standard of review).

          Commentary to the relevant sentencing guideline in effect

at the time of Moreno-Deleon’s sentencing specifically states that

kidnapping is a “crime of violence.”             USSG § 2L1.2, comment.

(n.1(B)(iii)).   Because the prior conviction qualified as a “crime

of violence” as a matter of law, the district court made a purely

legal   determination    in   applying     the   §    2L1.2   enhancement.

Accordingly, the challenged enhancement does not trigger the Sixth

Amendment concerns addressed in Booker.              See United States v.


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Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir.), cert. denied, 126

S. Ct. 2366 (2006); United States v. Thompson, 421 F.3d 278, 283-84

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

United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.) (stating

that Booker expressly incorporates exception for recidivism-based

sentencing enhancements), cert. denied, 126 S. Ct. 640 (2005).

           Moreno-Deleon also argues that his sentence violates the

Sixth Amendment based on the district court’s determination of

criminal history points.     He argues that the district court had to

make   factual   findings   to   determine   that   he   was   eligible   for

additional points under USSG § 4A1.1(d) for committing the offense

while under a criminal justice sentence and USSG § 4A1.1(e) for

committing the offense less than two years after release from

imprisonment.    There is no constitutional error where the district

court makes legal determinations to calculate a criminal history

score.   Moreno-Deleon’s claim is foreclosed by circuit precedent.

See Thompson, 421 F.3d at 286 (holding that prior convictions could

not be severed from their essential components, including integral

facts such as the statutory violation and date of offense, and that

these facts were inherent to convictions, not extraneous to them);

Cheek, 415 F.3d at 350 (holding that defendant’s Sixth Amendment

right to trial by a jury was not violated by district court’s

reliance on his prior convictions for purposes of sentencing under

the Armed Career Criminal Act).      Moreover, on appeal, Moreno-Deleon



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does   not   challenge   any   factual   findings   regarding   the   prior

convictions, and he does not dispute the factual basis for the

probation officer’s and district court’s assessment of points under

USSG § 4A1.1.      Accordingly, Moreno-Deleon’s assertion that his

sentence violates the Sixth Amendment is without merit.         See United

States v. Collins, 412 F.3d 515, 523 (4th Cir. 2005) (holding that,

where defendant did not dispute any of the facts supporting the

career offender status in district court, there is no constitutional

violation in relying on defendant’s prior convictions).

             Finally, Moreno-Deleon asserts that his sentence violates

Booker because the district court sentenced him under a mandatory

Sentencing Guidelines scheme.      In United States v. White, 405 F.3d

208, 215 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005), this

court held that treating the guidelines as mandatory was error and

that the error was plain.      405 F.3d at 216-17.    The court declined

to presume prejudice, id. at 217-22, and held that the “prejudice

inquiry, therefore, is . . . whether after pondering all that

happened without stripping the erroneous action from the whole,

. . . the judgment was . . . substantially swayed by the error.”

Id. at 223 (internal quotation marks and citations omitted).            In

Rodriguez, we held that a defendant who makes an objection at

sentencing based on Blakely has preserved his claim of statutory

error (mandatory application of the guidelines) under Booker.

Rodriguez, 433 F.3d at 415.      The appeals court is thus obliged to


                                  - 4 -
review his claim de novo; consequently, the government has the

burden of showing harmless error.   Id.

            In this case, the district court clearly announced that

it would impose the same sentence in this case if the guidelines

were treated as advisory.   See White, 405 F.3d at 224.   Given the

identical alternative sentence, the Government can show that the

error in treating the guidelines as mandatory did not affect

Moreno-Deleon’s substantial rights.     See id. at 223 (noting that

substantial rights inquiry is the same under plain or harmless

error and that only difference is who bears burden of proof); see

also United States v. Shatley, 448 F.3d 264, 267-68 (4th Cir. 2006)

(holding a Sixth Amendment error harmless because the district

court announced an identical alternate sentence after considering

the Guidelines as advisory only and thus the error did not affect

the outcome of the proceeding). Because the district court imposed

an identical discretionary alternative sentence, the Government has

proven that Moreno-Deleon’s substantial rights were not violated.

             Accordingly, we affirm Moreno-Deleon’s conviction and

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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