United States v. Cover

22 F. App'x 72

• Court: Court of Appeals for the Second Circuit
• Decided: November 28, 2001
• Docket: No. 00-1542
• Status: Published

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Defendant Donovan Cover appeals from a August 14, 2000 judgment of the United States District Court for the Southern District of New York (Baer, J.) convicting him, after a guilty plea, of unlawful reentry into the United States after having been deported for conviction of an aggravated felony, in violation of 8 U.S.C. § 1326, and sentencing him, in principal part, to 46 months’ imprisonment.

Section 1326(a) provides for a maximum sentence of two years’ imprisonment, but § 1326(b)(2) provides for a maximum of twenty years’ imprisonment if the defendant had been deported following commission of an aggravated felony. Cover contends that, absent an admission that his deportation had been based on commission of an aggravated felony, he could only be sentenced to a maximum of two years, under 8 U.S.C. § 1326(a). Even assuming that Cover did not admit that he had been deported based on a conviction for an aggravated felony, his argument on appeal was squarely rejected by the Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Cover argues, however, that Almendarez-Torres was overruled by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have recently rejected that very proposition. See United States v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir.2001). We therefore reject Cover’s claim of error.

Accordingly, the judgment of the district court is hereby AFFIRMED.