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United States v. Plata-Oceguera , 195 F. App'x 186 ( 2006 )


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  •                              UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4611
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JORGE PLATA-OCEGUERA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-165)
Submitted:   July 31, 2006                 Decided:   August 24, 2006
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. David James, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Angela H. Miller, Michael F. Joseph, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a plea agreement, Jorge Plata-Oceguera pled
guilty to one count of reentry of an aggravated felon, in violation
of
    8 U.S.C. § 1326
    (a) (2000).         Plata-Oceguera appeals, challenging
the fifty-four month prison sentence imposed by the district court.
We affirm.
Plata-Oceguera    first    argues    that      the   district    court
improperly sentenced him to a term exceeding two years under
    8 U.S.C. § 1326
    (b)(2)    (2000).     Under     §    1326(a),      an   alien   who
illegally returns to the United States after being removed may be
imprisoned for up to two years.           However, § 1326(b)(2) provides
that if the alien’s “removal was subsequent to an aggravated
felony,” he faces a maximum prison term of twenty years.
Plata-Oceguera concedes that the Supreme Court ruled in
Almendarez-Torres v. United States,
    523 U.S. 224
     (1998), that
§ 1326(b)(2) is a penalty provision, not an element of the offense
which must be charged in the indictment and proven beyond a
reasonable doubt.     However, he contends that Almendarez-Torres was
called into question by the Supreme Court’s opinion in Apprendi v.
New Jersey,
    530 U.S. 466
     (2000), and its progeny and should no
longer   be    considered     binding    precedent.          Although      Apprendi
expressed     some   uncertainty      regarding       the   future    vitality     of
Almendarez-Torres, we have subsequently concluded that Almendarez-
Torres was not overruled by Apprendi, and remains the law.                        See
United States v. Cheek,
    415 F.3d 349
    , 352-53 (4th Cir.), cert.
denied,
    126 S. Ct. 640
     (2005).
- 2 -
Next, Plata-Oceguera asserts that the district court
erred in adopting the findings in the presentence investigation
report (“PSR”) that a sixteen-level increase in offense level was
warranted under U.S. Sentencing Guidelines Manual § 2L1.2 (2003),
because Plata-Oceguera’s 1997 drug conspiracy conviction resulted
in a twenty-five month sentence and qualified as an aggravated
felony.    To the extent that Plata-Oceguera challenges the finding
that the length of his 1997 sentence was twenty-five months, we
find that he failed to meet his burden of showing that information
relied upon by the district court was incorrect.          United States v.
Love,
    134 F.3d 595
    , 606 (4th Cir. 1998); United States v. Terry,
    916 F.2d 157
    , 162 (4th Cir. 1990).
We   also    reject   Plata-Oceguera’s      argument   that   the
district court miscalculated his guideline range.          In determining
a sentence, the court must calculate and consider the guideline
range, as well as the sentencing factors set forth in
    18 U.S.C.A. § 3553
    (a) (West 2000 & Supp. 2006).         United States v. Hughes,
    401 F.3d 540
    , 546-47 (4th Cir. 2005).          “A sentence within the proper
advisory Guidelines range is presumptively reasonable.”              United
States v. Johnson,
    445 F.3d 339
    , 341 (4th Cir. 2006).
Section     2L1.2(b)(1)(A)(I)    of   the   federal    sentencing
guidelines applies a sixteen-level enhancement if the defendant was
previously deported after “a conviction for a felony that is . . .
a drug trafficking offense for which the sentence exceeded 13
months.”    Here, the district court properly calculated Plata-
Oceguera’s guideline range to include a sixteen-level enhancement
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under   USSG    §   2L1.2(b)(1)(A)(i)     because    Plata-Oceguera       was
previously deported after his 1997 drug trafficking conviction for
which he received a twenty-five month sentence.           We therefore find
that Plata-Oceguera’s sentence was within the statutory maximum and
was reasonable.
For these reasons, we affirm Plata-Oceguera’s sentence.
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
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