United States of America v. Daniel C. Gardener

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4716
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL C. GARDENER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (CR-03-191)
Submitted: January 25, 2006 Decided: February 13, 2006
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Holly A. Pierson, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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*Gardener does not appeal his conviction.
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PER CURIAM:
Daniel C. Gardener appeals his fifty-seven month prison
sentence resulting from his conviction for illegal reentry after
deportation in violation of 8 U.S.C. §§ 1326(a), (b)(2) (2000).*
Finding no reversible error, we affirm.
Gardener contends the indictment did not establish that
he had a prior conviction under § 1326(b)(2). The indictment
established the elements of § 1326(a), but only stated that he
violated § 1326(b)(2) and did not describe that he had a drug
trafficking conviction that was an aggravated felony. However, the
Supreme Court has ruled that § 1326(b)(2) is a “penalty provision,”
not an element of the offense, and an underlying aggravated felony
conviction need not be charged in the indictment. Almendarez-
Torres v. United States, 523 U.S. 224, 226-27 (1998); see also
United States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (Almendarez-
Torres was not overruled by Apprendi v. New Jersey, 530 U.S. 466
(2000), or United States v. Booker, 543 U.S. 220 (2005)). Thus, we
conclude the indictment sufficiently charged the illegal reentry
prior conviction upon which Gardener’s sentence was based.
Relying on Booker, Gardener also claims that the prior
conviction was not proven beyond a reasonable doubt and his
sentencing enhancement was improper. In Almendarez-Torres, the
Supreme Court held that the government need not allege in its

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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. Almendarez-
Torres, 523 U.S. at 233-36, 243-44. As a result, the district
court did not err when it used Gardener’s prior convictions to
calculate his sentence.
Accordingly, we affirm the district court’s judgment. 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

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