United States v. Artega ( 2001 )

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Defendant Alexander Artega appeals from a September 5, 2000 judgment of the United States District Court for the Northern District of New York (McAvoy, C.J.) convicting him of being found in the United States after having been deported, in violation of 8 U.S.C. § 1326, and sentencing him to 57 months’ imprisonment.

Section 1326(a) provides for a maximum sentence of two years’ imprisonment, but § 1326(b)(2) provides for a maximum of twenty years’ imprisonment if the defendant had been deported following commission of an aggravated felony. Artega contends that, absent inclusion of his prior felony in the charge and proof of that felony to a jury beyond a reasonable doubt, he could only be sentenced to a maximum of two years, under 8 U.S.C. § 1326(a). This argument was squarely rejected by the Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Artega argues, however, that Almendarez-Torres was overruled by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have recently rejected that proposition. See United States v. Latorre-Benavides, 241 F.3d 262 (2d Cir.2001). We therefore reject Artega’s claim of error.

Accordingly, the judgment of the district court is hereby AFFIRMED.