United States v. Hernandez-Salgado , 36 F. App'x 88 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
ENRIQUE HERNANDEZ-SALGADO, a/k/a  No. 01-4715
Jesus H. Salgado, a/k/a Henry
Hernandez,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CR-01-8)
Submitted: April 30, 2002
Decided: June 3, 2002
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Scott L. Wilkinson, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. HERNANDEZ-SALGADO
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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 sub-
ject 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. California, 386 U.S. 738 (1967), raising the issue of whether
§ 1326 is constitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (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 (1993). Section 1326 provides a two-year maximum sen-
tence 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 subse-
quent to a conviction for an aggravated felony, the statutory maxi-
mum increases to twenty years. § 1326(b)(2). In Almendarez-Torres
v. United States, 523 U.S. 224, 235 (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
UNITED STATES v. HERNANDEZ-SALGADO 3
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
Hernandez-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 argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED