UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4454
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FEDERICO MARTINEZ-VENTURA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-466)
Submitted: May 31, 2005 Decided: July 6, 2005
Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., 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Unpublished opinions are not binding precedent in this circuit.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:
Federico Martinez-Ventura was sentenced to a thirteen-
month term of imprisonment and a one-year term of supervised
release after he pled guilty to illegal reentry, 8 U.S.C. § 1326(a)
(2000). Martinez-Ventura appeals, arguing that his sentence, based
in part on criminal history points for prior sentences not alleged
in the indictment, violated his Sixth Amendment right to jury trial
under Blakely v. Washington, 124 S. Ct. 2531 (2004). We affirm.*
Martinez-Ventura argues that Blakely brings into question
the viability of Almendarez-Torres v. United States, 523 U.S. 224
(1998) (holding that prior felony convictions are merely sentencing
enhancements, rather than elements of the offense). He contends
that the district court erred by placing him in criminal history
category V when the indictment did not charge that he had been
convicted of prior crimes, and the court thus violated his right to
have facts that increase the maximum sentence be charged in an
indictment, submitted to a jury, and proved beyond a reasonable
doubt. Because Martinez-Ventura did not raise the issue below,
*
Martinez-Ventura was released from confinement on November 9,
2004. We retain jurisdiction over the appeal because his term of
supervised release has not yet elapsed and legally could be reduced
to less than one year as his offense was a Class E felony. 18
U.S.C. § 3583(b)(3) (2000) (term of supervised release for a Class
E felony may not be more than one year); United States v. Trotter,
270 F.3d 1150, 1153 (7th Cir. 2001) (defendant’s appeal may avoid
mootness if term of supervised release may be shortened).
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review is for plain error. United States v. Olano, 507 U.S. 725,
731-32 (1993).
In Almendarez-Torres, the Supreme Court held that “the
government need not allege in its indictment and need not prove
beyond reasonable doubt that a defendant had prior convictions for
a district court to use those convictions for purposes of enhancing
a sentence.” In Apprendi v. New Jersey, 530 U.S. 466, 490 (2005),
the Supreme Court held “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory minimum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi did not overrule
Almendarez-Torres, and the Court recently reaffirmed its holding in
Apprendi. See United States v. Booker, 125 S. Ct. 738, 756
(2005). Therefore, we conclude that the district court did not err
in considering Martinez-Ventura’s prior sentences to calculate his
criminal history.
Because Martinez-Ventura has not shown any error in the
calculation of his eleven criminal history points, we affirm the
sentence imposed by the district court. 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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