UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4795
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAIME HUGO AGUIRRE-ESPINOZA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-78)
Submitted: May 12, 2004 Decided: May 26, 2004
Before TRAXLER, KING, and SHEDD, 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Affirmed by unpublished per curiam opinion.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. Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jaime Hugo Aguirre-Espinoza, a native and citizen of
Mexico, appeals his conviction and sentence to seventy-seven months
in prison following his guilty plea to illegal reentry into the
United States after having been removed subsequent to conviction
for an aggravated felony, in violation of 8 U.S.C. § 1326(a),
(b)(2) (2000). Aguirre-Espinoza’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
there are no meritorious grounds for appeal but arguing the penalty
provision of § 1326(b)(2) is unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466 (2000). Counsel also notes Aguirre-Espinoza’s
sentence was enhanced based on a prior conviction not alleged in
his indictment. Aguirre-Espinoza has been informed of his right to
file a pro se supplemental brief but has not done so. Finding no
meritorious issues and no error by the district court, we affirm.
Under 8 U.S.C. § 1326(b)(2), an alien who illegally
returns to the United States after having been removed subsequent
to conviction for an aggravated felony faces a maximum prison term
of twenty years. Since § 1326(b)(2) is a penalty provision, the
aggravated felony conviction need not be charged in the indictment.
Almendarez-Torres v. United States, 523 U.S. 224 (1998); see also
United States v. Sterling, 283 F.3d 216, 220 (4th Cir.), cert.
denied, 536 U.S. 931 (2002) (Almendarez-Torres was not overruled by
Apprendi). Moreover, the Supreme Court in Apprendi specifically
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excepted prior convictions from its holding. See Apprendi, 530
U.S. at 490 (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”). In keeping with the prior conviction
exception in Apprendi, a district court may use a prior conviction
to enhance a defendant’s sentence without requiring proof of the
prior conviction beyond a reasonable doubt. Sterling, 283 F.3d at
219-20; see also United States v. Kinter, 235 F.3d 192, 202 (4th
Cir. 2000). Accordingly, the district court did not err in
enhancing Aguirre-Espinoza’s sentence based on a prior conviction
under either § 1326(b)(2) or U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A) (2002).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Aguirre-Espinoza’s conviction and
sentence. This court requires that counsel inform his client, in
writing, of his right to petition to the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would
be frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client.
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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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