US v. Alex Sopon-Leon

Filing 920090612

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4893

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEX SOPON-LEON, a/k/a Alex Lopez, a/k/a Jesus Lopez, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00223-FDW-1)

Submitted:

May 6, 2009

Decided:

June 12, 2009

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Ann L. Hester, Peter Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Following a guilty plea, Alex Sopon-Leon was convicted of illegally reentering and being found in the United States, in violation sentenced of 8 U.S.C. § 1326 to a (2006). total of The district court months'

Sopon-Leon

fifty-seven

imprisonment. the district

Sopon-Leon appeals his sentence, contending that court incorrectly calculated his guideline

sentencing range by adding two points to his criminal history based on the timing of his offense, pursuant to U.S. Sentencing Guidelines affirm. In sentencing a defendant, a district court must first properly calculate the guideline range. 128 S. Ct. 586, 596 (2007). Gall v. United States, Manual § 4A1.1(d) (2007). Finding no error, we

"In assessing a challenge to a

sentencing court's application of the Guidelines, we review the court's factual findings for clear error and its legal

conclusions de novo." (4th Cir. 2006).

United States v. Allen, 446 F.3d 522, 527

The Sentencing Guidelines provide that in calculating the defendant's criminal history category, "[a]dd 2 points if the defendant committed the instant offense while under any

criminal supervised status."

justice release,

sentence,

including work

probation, release, or

parole, escape

imprisonment,

USSG § 4A1.1(d).

Because Sopon-Leon's offense was 2

illegally reentering and being found in the United States, the district court concluded USSG § 4A1.1(d) applied because he was serving a state prison sentence when immigration authorities

found him. Sopon-Leon concedes that he was serving a state

sentence when an Immigration and Customs Enforcement (ICE) agent learned that he had illegally reentered the United States and was thus "found" for purposes of 8 U.S.C. § 1326. See, e.g.,

United States v. Sosa-Carabantes, __ F.3d __ (4th Cir. Apr. 1, 2009) (No. 08-4109) (explaining that the defendant was found when the ICE agent had knowledge of his illegal reentry). these circumstances, requires the authorities of two are unanimous Under USSG

§ 4A1.1(d)

assessment

additional

criminal

history points.

United States v. Coeur, 196 F.3d 1344, 1346

(11th Cir. 1999); United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996); see also Sosa-Carabantes, __ F.3d at __ (noting whether or not USSG § 4A1.1(e)'s sentencing

enhancement applied depended on whether ICE found the defendant before or after he was sentenced); United States v. Figuereo, 404 F.3d 537, 541 (1st Cir. 2005) (holding the district court did not plainly err by applying USSG § 4A1.1(d) to a defendant found in the United States while imprisoned). Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and 3

legal before

contentions the court

are and

adequately argument

presented not

in aid

the the

materials decisional

would

process. AFFIRMED

4