United States v. Sandoval-Rocca ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4474
NESTOR V. SANDOVAL-ROCCA,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-00-19-DKC)
Submitted: November 22, 2000
Decided: December 14, 2000
Before WIDENER and WILKINS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Lynn
A. Battaglia, United States Attorney, Rod J. Rosenstein, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. SANDOVAL-ROCCA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nestor V. Sandoval-Rocca pled guilty to one count of reentry by
a deported alien in violation of 8 U.S.C.A. § 1326(a) (West 1999). At
sentencing, the district court found that Sandoval-Rocca was previ-
ously convicted of an aggravated felony. Thus, the statutory maxi-
mum term of imprisonment for Sandoval-Rocca was twenty years.
See 8 U.S.C.A. § 1326(b)(2). Sandoval-Rocca claims that the finding
that he was convicted of an aggravated felony was an element of the
offense and he should have been informed it was an element of the
offense when he pled guilty. Finding no reversible error, we affirm.
Because Sandoval-Rocca did not raise this issue in the district court
we review for plain error. See United States v. Olano, 507 U.S. 725,
732-34 (1993). A reviewing court may notice plain error where (1) an
error was committed; (2) the error was plain, meaning obvious; and
(3) the error affected substantial rights, in other words, the error was
so prejudicial as to affect the outcome of the proceedings. Id. at 732-
37; United States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995).
Even if the threshold requirements are satisfied, we must then exer-
cise our discretion to determine whether the error "seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings."
Olano, 507 U.S. at 736 (quoting United States v. Atkinson, 297 U.S.
157, 160 (1936)); see also United States v. Lockhart, 58 F.3d 86, 88
(4th Cir. 1995). In order for an error to be plain, "it is enough that
[the] error be ‘plain’ at the time of appellate consideration." Johnson
v. United States, 520 U.S. 461, 468 (1997).
In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the
Supreme Court held that § 1326(b)(2), which authorizes a maximum
penalty of twenty years if a defendant convicted of illegal reentry
under subsection (a) had a previous conviction for an "aggravated fel-
ony," is a penalty provision and, therefore, it is not necessary to
UNITED STATES v. SANDOVAL-ROCCA 3
charge the fact of the earlier conviction in the indictment. Sandoval-
Rocca contends, however, that Apprendi v. New Jersey, 530 U.S. ___,
2000 WL 807189 (U.S. June 26, 2000) (No. 99-478), makes the
Almendarez-Torres decision questionable. Apprendi holds that any
fact that increases the penalty for a crime beyond the statutory maxi-
mum generally must be submitted to a jury and proved beyond a rea-
sonable doubt. See id. at *13. The Court recognized that its decision
in Almendarez-Torres creates an exception to this general rule where
it is the fact of a prior conviction that increases the sentence. See 2000
WL 807189, *13. However, the Court noted that perhaps Almendarez-
Torres was wrongly decided. See id. The Court did not further
address the prior conviction issue because Apprendi did not challenge
Almendarez-Torres or a sentencing enhancement based on a prior
conviction. Thus, Almendarez-Torres was not overruled by Apprendi
and remains the law insofar as it relates to convictions under 8
U.S.C.A. § 1326(a). See United States v. Dabeit, ___ F.3d ___, 2000
WL 1634264, *4 (5th Cir. Oct. 30, 2000) (Apprendi did not overrule
Almendarez-Torres); United States v. Gatewood, ___ F.3d ___, 2000
WL 1483177 (6th Cir. Oct. 10, 2000) (despite Apprendi, Almendarez-
Torres remains the law); see also Columbia Union Coll. v. Clarke,
159 F.3d 151, 158 (4th Cir. 1998) (lower courts should not presume
that Supreme Court has overruled one of its cases by implication.
Courts must follow case that directly controls unless clearly overruled
by subsequent Supreme Court case). Because Almendarez-Torres has
not been overruled, the district court did not commit plain error by
considering Sandoval-Rocca’s aggravated felony to be a sentencing
factor and not an element of the offense. See Dabeit, 2000 WL
1634264, *4.
Accordingly, we affirm the conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED