United States v. Jaimes-Bustos ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EZEQUIEL JAIMES-BUSTOS, a/k/a Ruben Fernandez-Salamancha,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00089-FDW-1)
Submitted: December 23, 2009 Decided: January 7, 2010
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina; Kenneth Michel Smith, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Without a plea agreement, Ezequiel Jaimes-Bustos pled
guilty to reentering the United States after having been
deported as an aggravated felon, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006). The district court sentenced him to
forty-one months in prison. Jaimes-Bustos appeals.
Counsel filed an Anders ∗ brief, in which he states that
there are no meritorious grounds for appeal, but challenges the
adequacy of the indictment in two regards. Jaimes-Bustos was
advised of his right to file a pro se supplemental brief but he
did not file one.
Counsel contends that Jaimes-Bustos’ conviction should
be vacated because the indictment failed to allege an essential
element of his crime, namely that he was an “alien.” By
pleading guilty, Jaimes-Bustos waived any challenge to this
non-jurisdictional alleged defect. Menna v. New York, 423 U.S.
61, 62 n.2 (1975); Tollett v. Henderson, 411 U.S. 258, 267
(1973); see United States v. Cotton, 535 U.S. 625, 630-31 (2002)
(noting that defects in an indictment are not jurisdictional).
In any event, this claim is without merit. See United States v.
De La Pava, 268 F.3d 157, 160-62 (2d Cir. 2001) (finding that
omission of the term “alien” did not render indictment charging
∗
Anders v. California, 386 U.S. 738 (1967).
2
§ 1326 violation invalid; only an alien may be deported from
United States and needs Attorney General’s permission to
reenter).
Section 1326 provides a two-year maximum sentence for
any alien who illegally enters the United States after having
been deported. 8 U.S.C. § 1326(a). If the alien’s removal was
subsequent to a conviction for an aggravated felony, the
statutory maximum penalty increases to twenty years. Id.§ 1326(b)(2). Counsel claims that Jaimes-Bustos’ indictment was
“fatally flawed” because it did not specify the aggravated
felony upon which his sentence was enhanced under § 1326(b)(2).
However, the Supreme Court has held that § 1326(b)(2) is a
“penalty provision,” not an element of the offense, and the
underlying aggravated felony conviction need not be specified 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, 352 (4th Cir. 2005) (holding that 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 that this argument is without merit.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Jaimes-Bustos’ conviction and
sentence. This court requires that counsel inform Jaimes-
3
Bustos, in writing, of the right to petition the Supreme Court
of the United States for further review. If Jaimes-Bustos
requests that a petition be filed, but counsel believes that
such 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 Jaimes-
Bustos.
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
4