UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ATANASIO NAVA-VEGA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:07-cr-00110-RJC-1)
Submitted: September 25, 2008 Decided: October 9, 2008
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ross H. Richardson, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Atanasio Nava-Vega pled guilty to illegal reentry after
deportation following conviction of an aggravated felony, in
violation of 8 U.S.C. § 1326(a), (b)(2) (2000), and was sentenced
to fifty-two months’ imprisonment. He now appeals, questioning the
constitutionality of 8 U.S.C. § 1326(b)(1) and (2) in the wake of
Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm.
Because Nava-Vega did not raise the constitutionality of
§ 1326(b) before the district court, we review for plain error.
See United States v. Olano, 507 U.S. 725, 731-32 (1993). Section
1326(a) provides a two-year maximum term of imprisonment for any
alien who illegally returns to the United States after having been
deported. 8 U.S.C. § 1326(a). If the removal was subsequent to a
conviction for an aggravated felony, the statutory maximum
increases to twenty years. Id. § 1326(b)(2). In Almendarez-Torres
v. United States, 523 U.S. 224, 233-36, 243-44 (1998), the Supreme
Court held that § 1326(b)(2) is a sentencing factor rather than a
separate criminal offense. We have expressly determined that the
holding in Almendarez-Torres was not overruled by Apprendi and
remains the law. United States v. Sterling, 283 F.3d 216, 220 (4th
Cir. 2002). We therefore conclude that Nava-Vega’s claim is
without merit and affirm the district court’s judgment. 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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