US v. DeLamos

Filing 920071022


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4030 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus REY ROJAS DELAMOS, a/k/a Rojas Delamos, a/k/a Reynaldo Jajas Delalama, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:06-cr-00122-BR) Submitted: September 19, 2007 Decided: October 22, 2007 Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal grand jury charged Rey Rojas DeLamos in a single count indictment with illegal reentry of a removed alien, in violation of 8 U.S.C. 1326 (2000). DeLamos pled guilty. He now appeals the ninety--six--month prison term imposed by the district court. We affirm. DeLamos sentenced him to argues a term that the district two years court under improperly 8 U.S.C. exceeding 1326(b) (2000) because his prior aggravated felony conviction was not charged in the indictment and proved beyond a reasonable doubt. Under 1326(a), an alien who illegally returns to the United States after being removed may be imprisoned for up to two years. However, 1326(b)(2) provides that if the alien's "removal was subsequent to an aggravated felony," he faces a maximum prison term of twenty years; if the alien was deported after conviction of a non-aggravated felony, the maximum sentence is ten years under 1326(b)(1). DeLamos concedes that the Supreme Court ruled in Almendarez-Torres v. United States, 523 U.S. 224 (1998), that 1326(b) is a penalty provision, not an element of the offense which must be charged in the indictment and proven beyond a reasonable doubt. However, he contends that Almendarez-Torres was called into question by the Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny and should no longer be considered some binding precedent. the Although future Apprendi of expressed uncertainty regarding - 2 - vitality Almendarez-Torres, we have subsequently concluded that Almendarez-Torres was not overruled by Apprendi, and remains the law. See United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.), cert. denied, 546 U.S. 1010 (2005). DeLamos' claim is without merit. Accordingly, we affirm DeLamos' sentence. We dispense We therefore conclude that 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 - 3 -

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