United States v. Nunez-Tiscareno , 288 F. App'x 69 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4898
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN NUNEZ-TISCARENO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:07-cr-00002-RLV)
Submitted: June 30, 2008 Decided: August 6, 2008
Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Raquel Wilson, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Nunez-Tiscareno pled guilty to illegal reentry
subsequent to a conviction for an aggravated felony, in violation
of 8 U.S.C. § 1326(a),(b) (2000), and was sentenced to seventy-one
months’ imprisonment. He appeals, claiming that his sentence was
increased based on a prior conviction not alleged in the indictment
and, therefore, was unconstitutional.* We affirm.
At sentencing, the district court increased Nunez-
Tiscareno’s base offense level of 8 by 16 levels because a prior
state court conviction for trafficking in cocaine constituted an
aggravated felony within the meaning of U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A)(I) (2006). After a three-level reduction
for acceptance of responsibility, Nunez-Tiscareno’s total offense
level was determined to be 21. With a criminal history category of
IV, the resulting guidelines range was 57-71 months imprisonment;
the district court imposed a sentence at the top of the range.
Nunez-Tiscareno asserts that the district court’s factual
finding with respect to his prior conviction violates the rule
announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). Nunez-
Tiscareno’s argument is foreclosed by the Supreme Court’s decision
in Almendarez-Torres v. United States, 523 U.S. 224, 233-36, 243-44
*
Under § 1326(a), an alien who illegally returns to the United
States after being removed may be imprisoned for up to two years.
8 U.S.C. § 1326(a). 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. 8 U.S.C. § 1326(b)(2).
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(1998), which specifically held that, for purposes of § 1326, prior
convictions need not be determined by a jury beyond a reasonable
doubt. Additionally, this court has reaffirmed the continuing
validity of Almendarez-Torres after Apprendi and its progeny. See
United States v. Cheek, 415 F.3d 349, 351-54 (4th Cir. 2005).
We therefore conclude that Nunez-Tiscareno’s claim is
without merit and affirm his 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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