UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4392
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID A. BLACKWOOD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
04-216)
Submitted: January 18, 2006 Decided: April 6, 2006
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Franklin W. Draper, Assistant
Federal Public Defender, Lauren E. Case, Staff Attorney, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Philip S. Jackson,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On August 16, 2004, David Blackwood pleaded guilty to one
count of illegally re-entering the United States after having been
previously deported, in violation of 8 U.S.C. § 1326. Although §
1326(a) provides a two-year maximum term of imprisonment for this
offense, § 1326(b)(2) increases this maximum to twenty years when
the alien was previously removed subsequent to a conviction for an
aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(B). After
finding that Blackwood had been removed subsequent to a conviction
for an aggravated felony -- specifically, a 1992 federal felony
narcotics conviction -– the district court sentenced Blackwood to
70 months’ imprisonment.
On appeal of his sentence, Blackwood argues that because
the indictment in the instant case did not specifically charge, and
he did not admit, the prior conviction on which the court based the
sentencing enhancement, a sentence in excess of two years violated
his Sixth Amendment rights. Recognizing that this claim is
foreclosed by the Supreme Court's decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), he argues that that case is no
longer good law because it has been undercut by later cases.
The Supreme Court has not only failed to overturn
Almendarez-Torres, it has specifically recognized its continuing
force in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and in
United States v. Booker, 125 S. Ct. 738, 756 (2005). This court
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recently addressed the continuing vitality of Almendarez-Torres in
United States v. Cheek, 415 F.3d 349, 352 (4th Cir. 2005), and
held, "It is thus clear that the Supreme Court continues to hold
that the Sixth Amendment (as well as due process) does not demand
that the mere fact of a prior conviction used as a basis for a
sentencing enhancement be pleaded in an indictment and submitted to
a jury for proof beyond a reasonable doubt." We decline
Blackwood's invitation to revisit this decision and affirm.
AFFIRMED
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