UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4454

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FEDERICO MARTINEZ-VENTURA,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr.,

District Judge. (CR-03-466)

Submitted: May 31, 2005 Decided: July 6, 2005

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,

Jr., Assistant Federal Public Defender, Greensboro, North Carolina,

for Appellant. Anna Mills Wagoner, United States Attorney,

Angela H. Miller, Assistant United States Attorney, Greensboro,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

Martinez-Ventura was released from confinement on November 9,

2004. We retain jurisdiction over the appeal because his term of

supervised release has not yet elapsed and legally could be reduced

to less than one year as his offense was a Class E felony. 18

U.S.C. § 3583(b)(3) (2000) (term of supervised release for a Class

E felony may not be more than one year); United States v. Trotter,

270 F.3d 1150, 1153 (7th Cir. 2001) (defendant’s appeal may avoid

mootness if term of supervised release may be shortened).

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PER CURIAM:

Federico Martinez-Ventura was sentenced to a thirteenmonth term of imprisonment and a one-year term of supervised

release after he pled guilty to illegal reentry, 8 U.S.C. § 1326(a)

(2000). Martinez-Ventura appeals, arguing that his sentence, based

in part on criminal history points for prior sentences not alleged

in the indictment, violated his Sixth Amendment right to jury trial

under Blakely v. Washington, 124 S. Ct. 2531 (2004). We affirm.*

Martinez-Ventura argues that Blakely brings into question

the viability of Almendarez-Torres v. United States, 523 U.S. 224

(1998) (holding that prior felony convictions are merely sentencing

enhancements, rather than elements of the offense). He contends

that the district court erred by placing him in criminal history

category V when the indictment did not charge that he had been

convicted of prior crimes, and the court thus violated his right to

have facts that increase the maximum sentence be charged in an

indictment, submitted to a jury, and proved beyond a reasonable

doubt. Because Martinez-Ventura did not raise the issue below,
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review is for plain error. United States v. Olano, 507 U.S. 725,

731-32 (1993).

In Almendarez-Torres, the Supreme Court held that “the

government need not allege in its indictment and need not prove

beyond reasonable doubt that a defendant had prior convictions for

a district court to use those convictions for purposes of enhancing

a sentence.” In Apprendi v. New Jersey, 530 U.S. 466, 490 (2005),

the Supreme Court held “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory minimum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi did not overrule

Almendarez-Torres, and the Court recently reaffirmed its holding in

Apprendi. See United States v. Booker, 125 S. Ct. 738, 756

(2005). Therefore, we conclude that the district court did not err

in considering Martinez-Ventura’s prior sentences to calculate his

criminal history.

Because Martinez-Ventura has not shown any error in the

calculation of his eleven criminal history points, we affirm the

sentence imposed by the district court. 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