           Vacated by Supreme Court, January 24, 2005

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4025



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JESUS REYES, a/k/a Carlos Rodriguez,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-234)


Submitted: May 13, 2004                        Decided:   May 18, 2004


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Jesus Reyes pled guilty to being knowingly and unlawfully

found in the United States after being previously deported and

being previously convicted in the United States for an aggravated

felony in violation of 8 U.S.C. § 1326(a) (2000).                  The district

court sentenced Reyes to a forty-one month term of imprisonment,

one-year term of supervised release, and a $100 special assessment.

             Reyes was previously deported following his conviction in

January     1996    for     possession     with    intent   to   distribute   and

manufacture a Class A substance.                  After being deported, Reyes

illegally reentered the United States.               In March 2003, agents of

the Bureau of Immigration and Customs Enforcement found Reyes

incarcerated in North Carolina serving a 30-36 month sentence for

trafficking in cocaine. Reyes was charged with the instant offense

and elected to plead guilty pursuant to a written plea agreement.

             During sentencing, the district court added two points to

Reyes’ criminal history pursuant to the U.S. Sentencing Guidelines

Manual § 4A1.1(d) (2000), because Reyes committed the offense while

serving     a    term     of   imprisonment.        After   determining    Reyes’

guidelines range, the court sentenced Reyes to a forty-one month

term   of       imprisonment.        The    court     imposed    this     sentence

consecutively to the undischarged state sentence Reyes was serving

pursuant to USSG § 5G1.3(a), which mandates that if an offense is

committed while the defendant is serving a term of imprisonment for


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another offense, the sentence for the instant offense is to be

served consecutively to the undischarged term of imprisonment.

           On appeal, Reyes argues that the court committed clear

error in assessing two additional criminal history points and

imposing a consecutive sentence because he committed the offense

while he was serving a term of imprisonment.             We review factual

determinations made in sentencing proceedings for clear error and

legal conclusions de novo.       United States v. Blake, 81 F.3d 498,

503 (4th Cir. 1996).

           Reyes maintains that he did not voluntarily incarcerate

himself and had no control over being found in prison, thus he

should not be penalized for his inability to leave the country.

However, § 1326(a) plainly states that the offense of unlawful

reentry is committed whenever a previously deported alien, without

permission, “enters, attempts to enter, or is at anytime found in,

the United States.”       The language of the statute thus clearly

encompasses the circumstances in which Reyes was discovered.

           Accordingly, we affirm Reyes’ 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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