United States of America v.  Eduardo Coria-Vieyra

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4452 
EDUARDO CORIA-VIEYRA,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-00-195)
Submitted: December 19, 2001
Decided: January 15, 2002
Before MOTZ and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Eduardo Coria-Vieyra pled guilty to one count of re-entry by a
deported alien in violation of 8 U.S.C.A. § 1326 (West 1999); 18
U.S.C. § 2 (1994). The district court found, after the Government
filed a notice of sentencing enhancement, that the statutory maximum
sentence was twenty years incarceration. See 8 U.S.C.A.
§ 1326(b)(2). Coria-Vieyra was thereupon sentenced to serve a prison
term of fifty-seven months. He argues on appeal 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.
Because the Supreme Court has held § 1326(b)(2) sets forth a sen-
tencing factor rather than an element of the offense, this claim is with-
out merit. See Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Contrary to Coria-Vieyra’s assertions, Almendarez-Torres
was not overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000).
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (find-
ing Apprendi did not overrule Almendarez-Torres), cert. denied, 531
U.S. 1202 (2001); United States v. Gatewood, 230 F.3d 186, 192 (6th
Cir. 2000) (en banc) (finding that, despite Apprendi, Almendarez-
Torres remains the law); see also Columbia Union Coll. v. Clarke,
159 F.3d 151, 158 (4th Cir. 1998) (stating that lower courts should
not presume the Supreme Court has overruled one of its cases by
implication; courts must follow case law that directly controls unless
clearly overruled by subsequent Supreme Court case). We accord-
ingly find that Almendarez-Torres is controlling.
Consequently, we affirm the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 UNITED STATES v. CORIA-VIEYRA

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