UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4715 ENRIQUE HERNANDEZ-SALGADO, a/k/a

Jesus H. Salgado, a/k/a Henry

Hernandez,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Malcolm J. Howard, District Judge.

(CR-01-8)

Submitted: April 30, 2002

Decided: June 3, 2002

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Scott L. Wilkinson, OFFICE OF THE UNITED STATES

ATTORNEY, Raleigh, North Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Enrique Hernandez-Salgado was charged in a one-count indictment

with being an aggravated felon who entered the United States without

consent of the Attorney General after having been previously

deported in violation of 8 U.S.C.A. § 1326(a), (b)(2) (West 1999).

Hernandez-Salgado was convicted in October 1997 for aggravated

assault of a handicapped person and was deported in March 1999. The

Government gave Hernandez-Salgado notice that his sentence would

be enhanced under 8 U.S.C.A. § 1326(b)(2) and that he would be subject to a maximum sentence of imprisonment of twenty years. 

Hernandez-Salgado pleaded guilty without the benefit of a plea

agreement. The district court sentenced him to seventy-seven months

in prison, three years of supervised release, and assessed a $1000 fine.

Hernandez-Salgado’s attorney filed a brief in accordance with Anders

v. California, 386 U.S. 738 (1967), raising the issue of whether

§ 1326 is constitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000). Hernandez-Salgado was informed of his right to file a pro

se supplemental brief but has not done so. 

Because Hernandez-Salgado did not raise this issue in the district

court, we review for plain error. See United States v. Olano, 507 U.S.

725, 731-32 (1993). Section 1326 provides a two-year maximum sentence for any alien who illegally enters the United States after having

been deported. 8 U.S.C.A. § 1326(a)(1). If the removal was subsequent to a conviction for an aggravated felony, the statutory maximum increases to twenty years. § 1326(b)(2). In Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998), the Supreme Court held

that § 1326(b)(2) is a sentencing factor rather than a separate offense.

We have expressly determined that the holding in Almendarez-Torres

was not overruled by Apprendi. United States v. Sterling, 283 F.3d

216, 220 (4th Cir. 2002). Accordingly, the Government was not

2 UNITED STATES v. HERNANDEZ-SALGADO
required to charge the fact of Hernandez-Salgado’s prior aggravated

felony conviction in the indictment or prove it beyond a reasonable

doubt. 

In accordance with Anders, we have reviewed the entire record and

have found no meritorious issues for appeal. We therefore affirm

Hernandez-Salgado’s conviction and sentence. This court requires

that counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. If the client

requests that a petition be filed, but counsel believes that such 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. 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

UNITED STATES v. HERNANDEZ-SALGADO 3