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United States v. Macedo-Molina , 14 F. App'x 217 ( 2001 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.
         No. 00-4925
JORGE MACEDO-MOLINA, a/k/a Guijul
Siriguanico,
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-00-79)
Submitted: July 3, 2001
Decided: July 20, 2001
Before WIDENER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.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. John Stuart Bruce, United States Attorney (Interim), Anne
M. Hayes, Assistant United States Attorney, Scott L. Wilkinson,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
2                 UNITED STATES v. MACEDO-MOLINA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jorge Macedo-Molina pled guilty to one count of re-entry by a
deported alien in violation of
    8 U.S.C.A. § 1326
     (West 1999 & Supp.
2000). The district court found Macedo-Molina had been convicted of
two prior aggravated felonies, making the statutory maximum sen-
tence a twenty-year term of imprisonment. See
    8 U.S.C.A. § 1326
    (b)(2). Macedo-Molina argues he should have been sentenced
under the provisions of § 1326(a), which provides a maximum sen-
tence of two years, because the Government did not charge a violation
of § 1326(b)(2) in the indictment. We affirm.
Because the Supreme Court has held § 1326(b)(2) sets forth a sen-
tencing factor rather than an element of the offense, this claim is with-
out merit. See Almendarez-Torres v. United States,
    523 U.S. 224
    , 235
(1998). Contrary to Macedo-Molina’s assertions, we find
Almendarez-Torres was not overruled by Apprendi v. New Jersey,
    530 U.S. 466
     (2000). See United States v. Dabeit,
    231 F.3d 979
    , 984
(5th Cir. 2000) (finding Apprendi did not overrule Almendarez-
Torres), cert. denied,
    121 S. Ct. 1214
     (2001); United States v. Gate-
wood,
    230 F.3d 186
    , 192 (6th Cir. 2000) (finding that, despite
Apprendi, Almendarez-Torres remains the law); see also Columbia
Union Coll. v. Clarke,
    159 F.3d 151
    , 158 (4th Cir. 1998) (stating that
lower courts should not presume the Supreme Court has overruled
one of its cases by implication; courts must follow case law that
directly controls unless clearly overruled by subsequent Supreme
Court case).
Consequently, we affirm the sentence imposed by the district court.
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