US v. Ezequiel Jaimes-Bustos

Filing 920100107

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5084

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EZEQUIEL JAIMES-BUSTOS, a/k/a Ruben Fernandez-Salamancha, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00089-FDW-1)

Submitted:

December 23, 2009

Decided:

January 7, 2010

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Charles R. Brewer, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina; Kenneth Michel Smith, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Without a plea agreement, Ezequiel Jaimes-Bustos pled guilty deported to as reentering an the United felon, States in after having of 8 been U.S.C.

aggravated

violation

§ 1326(a), (b)(2) (2006). forty-one months in prison.

The district court sentenced him to Jaimes-Bustos appeals.

Counsel filed an Anders brief, in which he states that there are no meritorious grounds for appeal, but challenges the adequacy of the indictment in two regards. Jaimes-Bustos was

advised of his right to file a pro se supplemental brief but he did not file one. Counsel contends that Jaimes-Bustos' conviction should be vacated because the indictment failed to allege an essential element pleading of his crime, namely that he was any an "alien." to By this

guilty,

Jaimes-Bustos

waived

challenge

non-jurisdictional alleged defect. 61, 62 n.2 (1975); Tollett v.

Menna v. New York, 423 U.S. 411 U.S. 258, 267

Henderson,

(1973); see United States v. Cotton, 535 U.S. 625, 630-31 (2002) (noting that defects in an indictment are not jurisdictional). In any event, this claim is without merit. See United States v.

De La Pava, 268 F.3d 157, 160-62 (2d Cir. 2001) (finding that omission of the term "alien" did not render indictment charging

Anders v. California, 386 U.S. 738 (1967).

2

§ 1326 violation invalid; only an alien may be deported from United States and needs Attorney General's permission to

reenter). Section 1326 provides a two-year maximum sentence for any alien who illegally enters the United States after having been deported. subsequent statutory to 8 U.S.C. § 1326(a). a conviction penalty for If the alien's removal was an aggravated to twenty felony, years. the Id.

maximum

increases

§ 1326(b)(2). "fatally

Counsel claims that Jaimes-Bustos' indictment was because it did not specify the aggravated

flawed"

felony upon which his sentence was enhanced under § 1326(b)(2). However, "penalty the Supreme Court not an has held that of the § 1326(b)(2) offense, is a

provision,"

element

and

the

underlying aggravated felony conviction need not be specified in the indictment. Almendarez-Torres v. United States, 523 U.S.

224, 226-27 (1998); see also United States v. Cheek, 415 F.3d 349, 352 (4th Cir. 2005) (holding that Almendarez-Torres was not overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000), or United States v. Booker, 543 U.S. 220 (2005)). Thus, we

conclude that this argument is without merit. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. sentence. We therefore court affirm requires 3 Jaimes-Bustos' that counsel conviction inform and

This

Jaimes-

Bustos, in writing, of the right to petition the Supreme Court of the United States for further review. If Jaimes-Bustos

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 representation. Counsel's

motion must state that a copy thereof was served on JaimesBustos. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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