United States v. Hernandez-Roman , 56 F. App'x 619 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4188
JUAN HERNANDEZ-ROMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-01-276)
Submitted: January 31, 2003
Decided: March 10, 2003
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Darren Byers, J. DARREN BYERS, P.A., Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States Attorney,
Angela H. Miller, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HERNANDEZ-ROMAN
OPINION
PER CURIAM:
Juan Hernandez-Roman appeals his conviction and sentence for
illegal reentry by a deported alien in violation of 8 U.S.C. § 1326(a),
(b)(2) (2000). Finding no reversible error, we affirm.
Hernandez-Roman pled guilty to illegal reentry. The district court
sentenced him to forty-eight months imprisonment, followed by three
years supervised release. In accordance with § 1326(b) and U.S. Sen-
tencing Guidelines Manual § 2L1.2(b)(1)(A) (2000), Hernandez-
Roman’s sentence was enhanced because of his prior conviction of an
aggravated felony. Hernandez-Roman asserts that, under Apprendi v.
New Jersey, 530 U.S. 466 (2000), the aggravated felony was an ele-
ment of the offense that had to be charged and proved beyond a rea-
sonable doubt. The Supreme Court held to the contrary in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and the
Apprendi Court did not overrule that holding. 530 U.S. at 489-90. See
United States v. Sterling, 283 F.3d 216, 220 (4th Cir.), cert. denied,
122 S. Ct. 2606 (2002) (holding that Almendarez-Torres was not
overruled by Apprendi).
We also reject Hernandez-Roman’s argument that his felony was
not serious enough to be an aggravated felony under USSG
§ 2L1.2(b)(1)(A). He acknowledges that he was convicted of a felony
for which he received a two-year sentence, and that he was an active
participant in the sale of three grams of cocaine base to a confidential
informant. The guideline refers to 8 U.S.C. § 1101(a)(43) (2000),
which defines aggravated felony as "illicit trafficking in a controlled
substance." Thus, Hernandez-Roman’s prior conviction requires a
sixteen-level enhancement of his base offense level.
Finally, Hernandez-Roman asserts that the district court abused its
discretion in failing to grant a downward departure. We can review
a district court’s decision whether to depart downward only if the dis-
trict court mistakenly believed itself without authority to depart.
United States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002); United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). There is nothing
in this record to suggest that the court was unaware of its authority
UNITED STATES v. HERNANDEZ-ROMAN 3
to grant a downward departure; therefore we conclude that this claim
is not subject to appellate review.
Accordingly, we affirm Hernandez-Roman’s conviction and sen-
tence. 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