UNPUBLISHED

 UNITED STATES COURT OF APPEALS 

 FOR THE FOURTH CIRCUIT 

 No. 08-4674

 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

RAUL DIAZ MARTINEZ, 

Defendant - Appellant. 

 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Martin K. Reidinger, 

District Judge. (3:08-cr-00014-MR-1) 

 

Submitted: August 28, 2008 Decided: September 25, 2008 

Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit 

Judge. 

Vacated and remanded by unpublished per curiam opinion. 

Claire J. Rauscher, Raquel Wilson, FEDERAL DEFENDERS OF WESTERN 

NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. 

Gretchen C. F. Shappert, United States Attorney, Charlotte, North 

Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, 

North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
2 

PER CURIAM: 

Raul Diaz Martinez appeals the sentence imposed following his 

guilty plea to one count of improper entry by an alien, in 

violation of 8 U.S.C. ' 1325(a) (2000). Martinez does not appeal 

his conviction. We vacate the sentence and remand for resentencing 

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). 

Section 1325(a) states: 

Any alien who (1) enters or attempts to enter the United 

States at any time or place other than as designated by 

immigration officers, or (2) eludes examination or 

inspection by immigration officers, or (3) attempts to 

enter or obtains entry to the United States by a 

willfully false or misleading representation or the 

willful concealment of a material fact, shall, for the 

first commission of any such offense, be fined under 

Title 18 or imprisoned not more than 6 months, or both, 

and, for a subsequent commission of any such offense, be 

fined under Title 18, or imprisoned not more than 2 

years, or both.

8 U.S.C. ' 1325(a) (2006) (emphasis added). The district court 

determined by a preponderance of the evidence that Martinez had 

previously violated ' 1325(a), and was thus subject to the two-year 

statutory maximum. The court sentenced Martinez to twelve months 

and one day of imprisonment, and Martinez timely appealed. 

The Government concedes Sixth Amendment error. In Apprendi,

the Supreme Court held that any factor, other than a prior 

conviction, that increases the statutory maximum term must be 

alleged in the indictment and proven beyond a reasonable doubt, or 

admitted by the defendant. See also Blakely v. Washington, 542 
3 

U.S. 296, 304 (2004) (recognizing that court could not sentence 

based on facts not admitted in defendant=s guilty plea). Martinez 

has never been previously convicted under ' 1325. Moreover, the 

indictment does not allege a prior commission of a violation of 

' 1325, the issue was not submitted to a jury, and, under United 

States v. Milam, 443 F.3d 382 (4th Cir. 2006), Martinez did not 

admit any prior commission of a ' 1325 offense as part of his 

guilty plea. Accordingly, the district court=s conclusion that the 

statutory maximum penalty for Martinez was two years rather than 

six months was erroneous. 

Because Martinez=s sentence violates Apprendi, we vacate his 

sentence and remand for resentencing. 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. 

 VACATED AND REMANDED