### UNPUBLISHED



# UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT



#  U NITED S TATES OFA MERICA ,

Plaintiff-Appellee,

v. No. 00-4474



# 

N ESTORV. S ANDOVAL -R OCCA ,

Defendant-Appellant. 

# 

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.

(CR-00-19-DKC)

Submitted: November 22, 2000

Decided: December 14, 2000

Before WIDENER and WILKINS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

COUNSEL

James Wyda, Federal Public Defender, Beth M. Farber, Assistant Federal Public Defender, Baltimore, Maryland, for Appellant. Lynn A. Battaglia, United States Attorney, Rod J. Rosenstein, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

OPINION

PER CURIAM:

Nestor V. Sandoval-Rocca pled guilty to one count of reentry by a deported alien in violation of 8 U.S.C.A. § 1326(a) (West 1999). Atsentencing, the district court found that Sandoval-Rocca was previously convicted of an aggravated felony. Thus, the statutory maximum term of imprisonment for Sandoval-Rocca was twenty years. See 8 U.S.C.A. § 1326(b)(2). Sandoval-Rocca claims that the finding that he was convicted of an aggravated felony was an element of the offense and he should have been informed it was an element of the offense when he pled guilty. Finding no reversible error, we affirm.

Because Sandoval-Rocca did not raise this issue in the district court we review for plain error. See United States v. Olano , 507 U.S. 725, 732-34 (1993). A reviewing court may notice plain error where (1) an error was committed; (2) the error was plain, meaning obvious; and (3) the error affected substantial rights, in other words, the error was so prejudicial as to affect the outcome of the proceedings. Id. at 732- 37; United States v. Castner , 50 F.3d 1267, 1277 (4th Cir. 1995).Even if the threshold requirements are satisfied, we must then exercise our discretion to determine whether the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Olano , 507 U.S. at 736 (quoting United States v. Atkinson , 297 U.S. 157, 160 (1936)); see also United States v. Lockhart , 58 F.3d 86, 88 (4th Cir. 1995). In order for an error to be plain, "it is enough that [the] error be ‘plain’ at the time of appellate consideration." Johnson v. United States , 520 U.S. 461, 468 (1997).

In Almendarez-Torres v. United States , 523 U.S. 224 (1998), the Supreme Court held that § 1326(b)(2), which authorizes a maximum penalty of twenty years if a defendant convicted of illegal reentryunder subsection (a) had a previous conviction for an "aggravated felony," is a penalty provision and, therefore, it is not necessary to 2 U NITED S TATES v. S ANDOVAL -R OCCAcharge the fact of the earlier conviction in the indictment. SandovalRocca contends, however, that Apprendi v. New Jersey , 530 U.S. ___, 2000 WL 807189 (U.S. June 26, 2000) (No. 99-478), makes the Almendarez-Torres decision questionable. Apprendiholds that anyfact that increases the penalty for a crime beyond the statutory maximum generally must be submitted to a jury and proved beyond a reasonable doubt. See id. at *13. The Court recognized that its decision in Almendarez-Torrescreates an exception to this general rule where it is the fact of a prior conviction that increases the sentence. See 2000 WL 807189, *13. However, the Court noted that perhaps AlmendarezTorreswas wrongly decided. See id. The Court did not further address the prior conviction issue because Apprendi did not challenge Almendarez-Torres or a sentencing enhancement based on a prior conviction. Thus, Almendarez-Torres was not overruled by Apprendi and remains the law insofar as it relates to convictions under 8 U.S.C.A. § 1326(a). See United States v. Dabeit , ___ F.3d ___, 2000 WL 1634264, *4 (5th Cir. Oct. 30, 2000) ( Apprendidid not overrule Almendarez-Torres ); United States v. Gatewood , ___ F.3d ___, 2000 WL 1483177 (6th Cir. Oct. 10, 2000) (despite Apprendi

, AlmendarezTorresremains the law); see also Columbia Union Coll. v. Clarke

, 159 F.3d 151, 158 (4th Cir. 1998) (lower courts should not presume that Supreme Court has overruled one of its cases by implication. Courts must follow case that directly controls unless clearly overruled by subsequent Supreme Court case). Because Almendarez-Torres has not been overruled, the district court did not commit plain error by considering Sandoval-Rocca’s aggravated felony to be a sentencing factor and not an element of the offense. See Dabeit , 2000 WL 1634264, *4.

Accordingly, we affirm the conviction and sentence. We dispensewith 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 U NITED S TATES v. S ANDOVAL -R OCCA