United States of America v.  Jose Guadalupe Rodriguez- Montoya

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4317 
JOSE GUADALUPE RODRIGUEZ-
MONTOYA,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-112)
Submitted: November 20, 2001
Decided: December 10, 2001
Before WIDENER, MICHAEL, and KING, 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Affirmed by unpublished per curiam opinion.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. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Scott L. Wilkinson, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jose Guadalupe Rodriguez-Montoya, a native and citizen of Mex-
ico, pled guilty to one count of re-entry by a deported alien in viola-
tion of 8 U.S.C.A. § 1326 (West 1999). The district court found that
Rodriguez-Montoya had been convicted of a prior aggravated felony,
making the statutory maximum a twenty-year term of imprisonment.
See 8 U.S.C.A. § 1326(b)(2). Rodriguez-Montoya contends that he
should have been sentenced under the provisions of § 1326(a), which
provides a maximum sentence of two years, because the Government
did not charge a violation of § 1326(b)(2) in the indictment. As
Rodriguez-Montoya did not raise this objection below, we review his
claim for plain error. Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 731-32 (1993).
Because the Supreme Court has held that § 1326(b)(2) sets forth a
sentencing factor rather than an element of the offense, this claim is
without merit. See Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Moreover, we reject Rodriguez-Montoya’s assertion that
Almendarez-Torres was overruled by Apprendi v. New Jersey, 530
U.S. 466 (2000). See United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, ___ U.S. ___, 121 S. Ct. 1214 (2001); United
States v. Gatewood, 230 F.3d 186, 192 (6th Cir. 2000).
We accordingly affirm Rodriguez-Montoya’s sentence and dis-
pense 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
2 UNITED STATES v. RODRIGUEZ-MONTOYA

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