                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4921



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JUAN MARTIN HERNANDEZ-HERNANDEZ,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-04-134)


Submitted:   August 15, 2005            Decided:   September 27, 2005


Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Juan Martin Hernandez-Hernandez pled guilty to one count

of   illegal    reentry     by   a   deported      aggravated   felon,    8   U.S.C.

§    1326(a)    (2000),     and      was     sentenced   to     forty-one     months

imprisonment.     He appeals, claiming that the district court erred

in applying the federal sentencing guidelines as mandatory in

violation of United States v. Booker, 125 S. Ct. 738 (2005).

Finding no error, we affirm.

           The indictment alleged that Hernandez-Hernandez had been

convicted in March 2001 in Texas state court of aggravated sexual

assault of a child.         At sentencing, the district court increased

Hernandez-Hernandez’s base offense level by sixteen levels because

the Texas conviction constituted a crime of violence within the

meaning of U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii)

(2002).        After    a   three-level        reduction      for   acceptance    of

responsibility,        Hernandez-Hernandez’s         total    offense    level   was

determined to be thirteen. With a criminal history category of II,

the resulting guidelines range was forty-one to fifty-one months

imprisonment; the district court imposed a sentence at the bottom

of the range.     The court also announced an alternative sentence of

four years, pursuant to this court’s decision in United States v.

Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381




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F.3d 316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct. 1051

(2005).

            Hernandez-Hernandez’s only argument on appeal is that the

district court erred by treating the sentencing guidelines as

mandatory in determining his sentence.                 Hernandez-Hernandez does

not challenge any enhancements to his sentence.                   Under Booker, in

reviewing      sentences    that     do    not     involve   a    Sixth   Amendment

violation, this court applies the harmless error doctrine in

determining whether resentencing is required.                  Booker, 125 S. Ct.

at 769. The harmless error standard permits an error at sentencing

to be disregarded if the reviewing court is certain that any such

error   “did    not   affect   the    district       court’s     selection    of   the

sentence imposed.”         Williams v. United States, 503 U.S. 193, 203

(1992). Here, because the district court imposed an alternate

discretionary sentence that was actually higher than the guideline

sentence, the error inherent in the application of the guidelines

as mandatory did not affect the court’s ultimate determination of

Hernandez-Hernandez’s        sentence.            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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