United States of America v.  ALFREDO GAMINO-GUTIERREZ, a/k/a Martin Perez, a/k/a Jose Alfaro Cuellar

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 02-4375  ALFREDO GAMINO-GUTIERREZ, a/k/a
Martin Perez, a/k/a Jose Alfaro
Cuellar,
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-01-112-FO)
Submitted: April 17, 2003
Decided: May 29, 2003
Before TRAXLER and GREGORY, 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Affirmed by unpublished per curiam opinion.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. Scott L. Wilkinson, OFFICE OF THE 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Unpublished opinions are not binding precedent in this circuit.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:
Alfredo Gamino-Gutierrez appeals his conviction and sentence
pursuant to a violation of 8 U.S.C. §§ 1326(a) and (b)(2) (2000).
Gamino-Gutierrez’s counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967). Although counsel states
that there are no meritorious issues for appeal, he argues that the pen-
alty provision of § 1326 is unconstitutional in light of the Supreme
Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Gamino-Gutierrez filed a supplemental brief, but the United States
did not file a formal brief. In accordance with Anders, we have con-
sidered the briefs and have examined the entire record for meritorious
issues. We find no error and affirm.
On appeal, Gamino-Gutierrez’s counsel argues that the penalty
provision of § 1326 is unconstitutional under the holding in Apprendi.
We have reviewed the record and find this issue foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and by our
decision in United States v. Sterling, 283 F.3d 216 (4th Cir. 2002).
In his supplemental brief, Gamino-Gutierrez argues that his guilty
plea was not given voluntarily, knowingly, and intelligently. How-
ever, we find that the plea colloquy was adequate and the district
court did not commit plain error by accepting the plea. See United
States v. Martinez, 277 F.3d 517, 527 (4th Cir.), cert. denied, 123 S.
Ct. 200 (2002).
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Gamino-Gutierrez’s conviction and sentence. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that such
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a 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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