UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4611
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WAGNER BARRERA, a/k/a Wagner Mardoqueo Babbera
Najarro, a/k/a Wagner Mardoqueo Barrera
Najarro, a/k/a Wagner M. Barrera Najarro,
a/k/a Wagner M. Barrera, a/k/a Wagner Mondogeo
Barreaa,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:07-cr-00003-sgw)
Submitted: December 19, 2007 Decided: January 11, 2008
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Andrea Harris, Assistant
Federal Public Defender, Christine Madeleine Spurell, Research and
Writing Attorney, Charlottesville, Virginia, for Appellant. Bruce
A. Pagel, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wagner Barrera pled guilty to illegal entry after being
previously deported, in violation of 8 U.S.C. §§ 1326(a), (b)(2)
(2000), and 18 U.S.C. § 2 (2000). He was sentenced to fifty-seven
months of imprisonment. His counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal, but raising for the court’s
consideration whether Barrera’s constitutional rights were violated
because his sentence was increased based on a prior conviction not
alleged in the indictment. Barrera was notified of his right to
file a pro se supplemental brief, but has not done so. The
Government did not file a reply brief. After reviewing the record,
we affirm.
Under § 1326(a), an alien who illegally returns to the
United States after being removed may be imprisoned for up to two
years. 8 U.S.C. § 1326(a). However, § 1326(b)(2) provides that,
if the alien’s removal was subsequent to an aggravated felony, he
faces a maximum prison term of twenty years. 8 U.S.C.
§ 1326(b)(2). Barrera argues that the district court improperly
sentenced him to a term exceeding two years under § 1326(b) because
his prior aggravated felony conviction was not charged in the
indictment.
Barrera concedes that the Supreme Court ruled in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), that
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§ 1326(b) is a penalty provision, not an element of the offense,
and the aggravated felony conviction need not be charged in the
indictment. However, he contends that Almendarez-Torres was called
into question by the Supreme Court’s opinion in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and its progeny and should no longer
be considered binding precedent. Although Apprendi expressed some
uncertainty regarding the future vitality of Almendarez-Torres, we
have subsequently concluded that Almendarez-Torres was not
overruled by Apprendi, and remains the law. United States v.
Sterling, 283 F.3d 216, 220 (4th Cir. 2002); see also United States
v. Cheek, 415 F.3d 349, 352-53 (4th Cir. 2005) (reaffirming
continuing validity of Almendarez-Torres after United States v.
Booker, 543 U.S. 220 (2005)). We therefore conclude that Barrera’s
claim is without merit.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Barrera’s conviction and sentence. This court
requires that counsel inform Barrera, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Barrera 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 Barrera. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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