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United States v. Cole , 31 F. App'x 235 ( 2002 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                            No. 01-4758
ROBERT NICHOLAS COLE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-01-111)
Submitted: February 12, 2002
Decided: March 26, 2002
Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Paula Xinix, Assistant Federal
Public Defender, Greenbelt, Maryland, for Appellant. Thomas M.
DiBiagio, United States Attorney, Daphene R. McFerren, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. COLE
OPINION
PER CURIAM:
Robert Nicholas Cole pled guilty to unauthorized reentry of a
deported alien, in violation of
    8 U.S.C.A. § 1326
     (West 1999). He
received an enhanced sentence because his "removal was subsequent
to a conviction for commission of an aggravated felony. . . ."
    8 U.S.C. § 1326
    (b)(2). Cole was sentenced to fifty-six months imprisonment.
Cole appeals, claiming that his sentence should be vacated in light
of the Supreme Court’s decision in Apprendi v. New Jersey,
    530 U.S. 466
     (2000). We conclude that Apprendi does not affect Cole’s sen-
tence. The Supreme Court held in Almendarez-Torres v. United
States,
    523 U.S. 224
    , 235 (1998), that § 1326(b)(2) sets forth a sen-
tencing factor rather than an element of the offense. That decision has
not been overruled. See United States v. Latorre-Benavides,
    241 F.3d 262
    , 263-64 (2d Cir.), cert. denied,
    121 S. Ct. 2013
     (2001); United
States v. Dabeit,
    231 F.3d 979
    , 984 (5th Cir. 2000), cert. denied,
    531 U.S. 1202
     (2001); see also Columbia Union Coll. v. Clarke,
    159 F.3d 151
    , 158 (4th Cir. 1998) (stating lower courts should not presume
Supreme Court has overruled one of its cases by implication, but must
follow case law that directly controls unless clearly overruled by sub-
sequent Supreme Court ruling).
Cole argues that the holding in Almendarez-Torres is limited to
cases in which a defendant admits the prior aggravated felony. We
conclude that this is not a meaningful distinction entitling him to
relief. See United States v. Gomez-Estrada,
    273 F.3d 400
    , 401 02 (1st
Cir. 2001); United States v. Pacheco-Zepeda,
    234 F.3d 411
    , 414-15
(9th Cir.), cert. denied,
    121 S. Ct. 1503
     (2001).
Cole has moved that we hold his case in abeyance pending the
Supreme Court’s decision in Harris v. United States,
    243 F.3d 806
    (4th Cir.), cert. granted,
    122 S. Ct. 663
     (Dec. 10, 2001). The United
States opposes the motion. We deny Cole’s motion and affirm his
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