United States v. Cepeda-Valdez , 61 F. App'x 849 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4629
PABLO EDWIN RAFAEL CEPEDA-
VALDEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-02-3)
Submitted: March 21, 2003
Decided: March 31, 2003
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Jeanette Doran Brooks, Research
and Writing Attorney, Raleigh, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
2 UNITED STATES v. CEPEDA-VALDEZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Pablo Edwin Rafael Cepeda-Valdez appeals the district court’s
order sentencing him to sixty-three months imprisonment following
his guilty pleas to aggravated assault on a United States law enforce-
ment officer in violation of 18 U.S.C. § 111 (2000), and illegal re-
entry into the United States after having been convicted of an aggra-
vated felony in violation of 8 U.S.C. § 1326(a), (b)(2) (2000). In his
appeal, filed pursuant to Anders v. California, 386 U.S. 738 (1967),
counsel for Cepeda-Valdez claims that 8 U.S.C. § 1326 is facially
unconstitutional because it subjects defendants to statutory sentencing
enhancements in violation of Apprendi v. New Jersey, 530 U.S. 466(2000).* This claim was not preserved in the district court. Accord-
ingly, it is reviewed for plain error. United States v. Cotton, 535 U.S.
625, __, 122 S. Ct. 1781, 1785 (2002); United States v. Ford, 88 F.3d
1350, 1355 (4th Cir. 1996).
In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the
Supreme Court held that § 1326(b)(2) is a penalty provision and,
therefore, a sentence under that section could be enhanced based on
a prior conviction even if the fact of the earlier conviction was not
charged in the indictment. Cepeda-Valdez contends that Almendarez-
Torres may no longer be valid after Apprendi. We disagree. The
Supreme Court declined to revisit Almendarez-Torres in Apprendi, so
Almendarez-Torres remains in force. See United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001);
United States v. Gatewood, 230 F.3d 186, 190 n.1 (6th Cir. 2000); see
also Columbia Union Coll. v. Clarke, 159 F.3d 151, 158 (4th Cir.
1998) (lower courts should not presume that the Supreme Court has
overruled one of its cases by implication; courts must follow case that
*Although Cepeda-Valdez was informed of his right to file a pro se
supplemental brief, he has not done so.
UNITED STATES v. CEPEDA-VALDEZ 3
directly controls unless clearly overruled by subsequent Supreme
Court decision). Accordingly, this claim lacks merit.
We have reviewed the record in accordance with Anders and find
no meritorious issues for appeal. Accordingly, we affirm the judg-
ment of the district court. 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 a petition would be frivolous,
then counsel may move in this court for leave to withdraw from repre-
sentation. Counsel’s motion must state that a copy thereof was served
on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED