United States v. Hernandez-Gutierrez

Fourth Circuit

United States v. Hernandez-Gutierrez

7 F. App'x 252

Court of Appeals for the Fourth Circuit·Decided April 16, 2001·No. 00-4642·Unpublished

Opinion

OPINION

PER CURIAM.

Jose Hernandez-Gutierrez pled guilty to one count of reentry by a deported alien in violation of 8 U.S.C.A. § 1326 (West 1999 & Supp.2000). At sentencing, the district court found that Hernandez-Gutierrez had been convicted of two prior aggravated felonies, making the statutory maximum sentence a twenty-year term of imprisonment.' See 8 U.S.C.A. § 1326(b)(2). Hernandez-Gutierrez argues that he should have been sentenced under the provisions of § 1326(a), which provides a maximum sentence of two years, because the government did not charge a violation of § 1326(b)(2) in the indictment. We affirm.

Because the Supreme Court has held that § 1326(b)(2) sets forth a sentencing factor rather than an element of the offense, this claim is without merit. See Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Contrary to Hernandez-Gutierrez’s assertions, we find that Almendarez-Torres was not overruled by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000) (finding that Apprendi did not overrule Almendarez-Torres), cert. denied, — U.S. —, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001); United States v. Gatewood, 230 F.3d 186, 192 (6th Cir.2000) (finding that, despite Apprendi, Almendarez-Torres remains the law); see also Columbia Union College v. Clarke, 159 F.3d 151, 158 (4th Cir.1998) (stating that lower courts should not presume that the Supreme Court has overruled one of its cases by implication; courts must follow case law that directly controls unless clearly overruled by subsequent Supreme Court case), cert. denied, 527 U.S. 1013, 119 S.Ct. 2357, 144 L.Ed.2d 252 (1999).

Consequently, 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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OPINION

PER CURIAM.

Jose Hernandez-Gutierrez pled guilty to one count of reentry by a deported alien in violation of 8 U.S.C.A. § 1326 (West 1999 & Supp.2000). At sentencing, the district court found that Hernandez-Gutierrez had been convicted of two prior aggravated felonies, making the statutory maximum sentence a twenty-year term of imprisonment.' See 8 U.S.C.A. § 1326(b)(2). Hernandez-Gutierrez argues that he should have been sentenced under the provisions of § 1326(a), which provides a maximum sentence of two years, because the government did not charge a violation of § 1326(b)(2) in the indictment. We affirm.

Because the Supreme Court has held that § 1326(b)(2) sets forth a sentencing factor rather than an element of the offense, this claim is without merit. See Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Contrary to Hernandez-Gutierrez’s assertions, we find that Almendarez-Torres was not overruled by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000) (finding that Apprendi did not overrule Almendarez-Torres), cert. denied, — U.S. —, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001); United States v. Gatewood, 230 F.3d 186, 192 (6th Cir.2000) (finding that, despite Apprendi, Almendarez-Torres remains the law); see also Columbia Union College v. Clarke, 159 F.3d 151, 158 (4th Cir.1998) (stating that lower courts should not presume that the Supreme Court has overruled one of its cases by implication; courts must follow case law that directly controls unless clearly overruled by subsequent Supreme Court case), cert. denied, 527 U.S. 1013, 119 S.Ct. 2357, 144 L.Ed.2d 252 (1999).

Consequently, 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.

United States v. Hernandez-Gutierrez, 7 F. App'x 252 (4th Cir. 2001).

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