United States v. Martinez

16 F. App'x 252

Opinion

OPINION

PER CURIAM.

Ernesto Arevalo Martinez was convicted for unlawful entry into the United States after deportation under 8 U.S.C.A. § 1326(a) (West 1999) and received an enhanced sentence under § 1326(b)(2) because he was deported subsequent to his conviction for burglary. For the reasons that follow, we affirm his conviction and sentence.

First, we find no violation of the Speedy Trial Act. United States v. Taylor, 240 F.3d 425, 427 (4th Cir.2001). Second, we do not find that Martinez’s enhanced sentence violates the prohibition against the passage of ex post facto laws. United States v. Forbes, 16 F.3d 1294, 1301-02 (1st Cir.1994). Next, the fact that Martinez’s Texas burglary conviction was set aside following his successful completion of a term of probation does not alter the fact that such conviction was a proper “aggravated felony" predicate for a sentence enhancement under § 1326(b)(2). United States v. Campbell, 167 F.3d 94, 98 (2d Cir.1999). Finally, we decline Martinez’s invitation to interpret the Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as overruling its earlier opinion in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Accordingly, we affirm Martinez’s conviction and sentence. 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.