UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 02-4155
PHILLIP GLENFIELD JACK, a/k/a
William Jack,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-01-398-A)
Submitted: July 31, 2002
Decided: September 6, 2002
Before WILKINS and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
John Cady Kiyonaga, KIYONAGA & KIYONAGA, Alexandria, Vir-
ginia, for Appellant. Paul J. McNulty, United States Attorney, Joan
Hogan, Special Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.
2 UNITED STATES v. JACK
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Phillip Glenfield Jack appeals his conviction following a bench
trial of unlawful re-entry into the United States following deportation
in violation of 8 U.S.C. § 1326(a) (2000), and his sentence to forty-six
months in prison and three years of supervised release. We affirm
Jack’s conviction and sentence.
Jack was charged in a one-count indictment with being an alien
who had been deported from the United States subsequent to a con-
viction for the commission of an aggravated felony without obtaining
express consent of the Attorney General in violation of 8 U.S.C.
§ 1326(a), (b)(2). The indictment in which Jack was charged mis-
characterized a September 1995 conviction as an aggravated felony.
Jack concedes, however, that he had a 1999 conviction that met the
definition of an aggravated felony. The district court found Jack
guilty of unlawful re-entry in violation of 8 U.S.C. § 1326(a). The
Government gave Jack notice it would seek an enhanced sentence
under § 1326(b). At sentencing, the district court sentenced Jack to
forty-six months in prison using the sentencing enhancement in
§ 1326(b)(1).
Jack argues his sentence exceeded the statutory maximum under 8
U.S.C. § 1326 in violation of Apprendi v. New Jersey, 530 U.S. 466
(2000). Section 1326 provides a two-year maximum sentence for any
alien who illegally enters the United States after having been
deported. 8 U.S.C. § 1326(a)(1). If the removal was subsequent to a
conviction for the commission of three or more misdemeanors involv-
ing drugs, crimes against the person, or both, or a felony other than
an aggravated felony, the maximum sentence is ten years.
§ 1326(b)(1). If the removal was subsequent to a conviction for the
commission of an aggravated felony, the maximum is twenty years.
§ 1326(b)(2). In Almendarez-Torres v. United States, 523 U.S. 224,
UNITED STATES v. JACK 3
235 (1998), the Supreme Court held that § 1326(b) is a sentencing
factor rather than a separate offense. We have expressly determined
that the holding in Almendarez-Torres was not overruled by
Apprendi. United States v. Sterling, 283 F.3d 216, 220 (4th Cir.), cert.
denied, 122 S. Ct. 2606 (2002). Accordingly, the Government was not
required to charge the fact of Jack’s prior conviction in the indictment
or prove it beyond a reasonable doubt. The district court properly con-
cluded the mischaracterization of Jack’s September 1995 conviction
was not material to the crime with which he was charged and properly
sentenced him under § 1326(b)(1). We therefore affirm Jack’s convic-
tion 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