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United States v. Barrera-Diaz , 34 F. App'x 145 ( 2002 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                              No. 01-4797
JAVIER BARRERA-DIAZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-154)
Submitted: April 10, 2002
Decided: May 16, 2002
Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, Williams S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Arnold L.
Husser, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
2                  UNITED STATES v. BARRERA-DIAZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Javier Barrera-Diaz pled guilty pursuant to a written plea agree-
ment to illegally reentering the United States after he had been
deported,
    8 U.S.C.A. § 1326
     (West 1999), and was sentenced to a
term of sixty-two months imprisonment, followed by three years of
supervised release. Barrera-Diaz’s attorney has filed a brief pursuant
to Anders v. California,
    386 U.S. 738
     (1967), raising two issues but
stating that, in his view, there are no meritorious issues for appeal.
Barrera-Diaz has been notified of his right to file a pro se supplemen-
tal brief, but has not done so. We affirm the conviction and sentence.
Barrera-Diaz received an enhanced sentence because his "removal
was subsequent to a conviction for commission of an aggravated fel-
ony."
    8 U.S.C.A. § 1326
    (b)(2). Counsel first suggests that, under
Apprendi v. New Jersey,
    530 U.S. 466
     (2000), Barrera-Diaz’s sen-
tence was improperly enhanced because the indictment charged only
that his previous conviction was a felony. We conclude that Apprendi
does not affect Barrera-Diaz’s sentence. The Supreme Court held in
Almendarez-Torres v. United States,
    523 U.S. 224
    , 235 (1998), that
§ 1326(b)(2) sets forth a sentencing 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 Colum-
bia 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 con-
trols unless clearly overruled by subsequent Supreme Court ruling).
Counsel also suggests that the district court erred in denying
Barrera-Diaz’s request for downward departure under U.S. Sentencing
Guidelines Manual § 4A1.3, p.s. (2000), based on Barrera-Diaz’s
UNITED STATES v. BARRERA-DIAZ                      3
contention that his career offender status significantly overstated the
seriousness of his prior offenses. Here, the record establishes that the
district court recognized its authority to grant Barrera-Diaz’s motion
for downward departure, but chose not to do so. Consequently, the
district court’s decision is not appealable. USSG § 4A1.3., p.s.;
United States v. Burgos,
    94 F.3d 849
    , 876 (4th Cir. 1996); United
States v. Bayerle,
    898 F.2d 28
    , 31 (4th Cir. 1990).
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the 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 fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move 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 argu-
ment would not aid the decisional process.
AFFIRMED