UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4795

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAIME HUGO AGUIRRE-ESPINOZA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, Chief

District Judge. (CR-03-78)

Submitted: May 12, 2004 Decided: May 26, 2004

Before TRAXLER, KING, and SHEDD, 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Affirmed by unpublished per curiam opinion.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. Anne M. Hayes, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Jaime Hugo Aguirre-Espinoza, a native and citizen of

Mexico, appeals his conviction and sentence to seventy-seven months

in prison following his guilty plea to illegal reentry into the

United States after having been removed subsequent to conviction

for an aggravated felony, in violation of 8 U.S.C. § 1326(a),

(b)(2) (2000). Aguirre-Espinoza’s attorney has filed a brief

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

there are no meritorious grounds for appeal but arguing the penalty

provision of § 1326(b)(2) is unconstitutional under Apprendi v. New

Jersey, 530 U.S. 466 (2000). Counsel also notes Aguirre-Espinoza’s

sentence was enhanced based on a prior conviction not alleged in

his indictment. Aguirre-Espinoza has been informed of his right to

file a pro se supplemental brief but has not done so. Finding no

meritorious issues and no error by the district court, we affirm.

Under 8 U.S.C. § 1326(b)(2), an alien who illegally

returns to the United States after having been removed subsequent

to conviction for an aggravated felony faces a maximum prison term

of twenty years. Since § 1326(b)(2) is a penalty provision, the

aggravated felony conviction need not be charged in the indictment.

Almendarez-Torres v. United States, 523 U.S. 224 (1998); see also

United States v. Sterling, 283 F.3d 216, 220 (4th Cir.), cert.

denied, 536 U.S. 931 (2002) (Almendarez-Torres was not overruled by

Apprendi). Moreover, the Supreme Court in Apprendi specifically
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excepted prior convictions from its holding. See Apprendi, 530

U.S. at 490 (“Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.”). In keeping with the prior conviction

exception in Apprendi, a district court may use a prior conviction

to enhance a defendant’s sentence without requiring proof of the

prior conviction beyond a reasonable doubt. Sterling, 283 F.3d at

219-20; see also United States v. Kinter, 235 F.3d 192, 202 (4th

Cir. 2000). Accordingly, the district court did not err in

enhancing Aguirre-Espinoza’s sentence based on a prior conviction

under either § 1326(b)(2) or U.S. Sentencing Guidelines Manual

§ 2L1.2(b)(1)(A) (2002).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Aguirre-Espinoza’s conviction and

sentence. This court requires that counsel inform his client, in

writing, of his right to petition to 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 representation. Counsel’s motion must state that a

copy thereof was served on the client.
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We dispense 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