United States v. Hernandez-Salgado

36 F. App'x 88

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 3, 2002
• Docket: 01-4715
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Enrique Hernandez-Salgado was charged in a one-count indictment with being an aggravated felon who entered the United States without consent of the Attorney General after having been previously deported in violation of 8 U.S.C.A. § 1326(a), (b)(2) (West 1999). Hernandez-Salgado was convicted in October 1997 for aggravated assault of a handicapped person and was deported in March 1999. The Government gave Hernandez-Salgado notice that his sentence would be enhanced under 8 U.S.C.A. § 1326(b)(2) and that he would be subject to a maximum sentence of imprisonment of twenty years.

Hernandez-Salgado pleaded guilty without the benefit of a plea agreement. The district court sentenced him to seventy-seven months in prison, three years of supervised release, and assessed a $1000 fine. Hernandez-Salgado’s attorney filed a brief in accordance with Anders v. Cali fornia, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising the issue of whether § 1326 is constitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Hernandez-Salgado was informed of his right to file a pro se supplemental brief but has not done so.

Because Hernandez-Salgado did not raise this issue in the district court, we review for plain error. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Section 1326 provides a two-year maximum sentence for any alien who illegally enters the United States after having been deported. 8 U.S.C.A. § 1326(a)(1). If the removal was subsequent to a conviction for an aggravated felony, the statutory maximum increases to twenty years. § 1326(b)(2). In Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that § 1326(b)(2) is a sentencing factor rather than a separate offense. We have expressly determined that the holding in Almendarez-Torres was not overruled by Apprendi. United States v. Sterling, 283 F.3d 216, 220 (4th Cir.2002). Accordingly, the Government was not required to charge the fact of Hernandez-Salgado’s prior aggravated felony conviction in the indictment or prove it beyond a reasonable doubt.

In accordance with Anders, we have reviewed the entire record and have found no meritorious issues for appeal. We therefore affirm Hemandez-Salgado’s conviction and sentence. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such 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 the client. 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.