United States v. Martinez , 293 F. App'x 995 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4674
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAUL DIAZ MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:08-cr-00014-MR-1)
Submitted: August 28, 2008 Decided: September 25, 2008
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Raul Diaz Martinez appeals the sentence imposed following his
guilty plea to one count of improper entry by an alien, in
violation of 8 U.S.C. ' 1325(a) (2000). Martinez does not appeal
his conviction. We vacate the sentence and remand for resentencing
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Section 1325(a) states:
Any alien who (1) enters or attempts to enter the United
States at any time or place other than as designated by
immigration officers, or (2) eludes examination or
inspection by immigration officers, or (3) attempts to
enter or obtains entry to the United States by a
willfully false or misleading representation or the
willful concealment of a material fact, shall, for the
first commission of any such offense, be fined under
Title 18 or imprisoned not more than 6 months, or both,
and, for a subsequent commission of any such offense, be
fined under Title 18, or imprisoned not more than 2
years, or both.
8 U.S.C. ' 1325(a) (2006) (emphasis added). The district court
determined by a preponderance of the evidence that Martinez had
previously violated ' 1325(a), and was thus subject to the two-year
statutory maximum. The court sentenced Martinez to twelve months
and one day of imprisonment, and Martinez timely appealed.
The Government concedes Sixth Amendment error. In Apprendi,
the Supreme Court held that any factor, other than a prior
conviction, that increases the statutory maximum term must be
alleged in the indictment and proven beyond a reasonable doubt, or
admitted by the defendant. See also Blakely v. Washington, 542
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U.S. 296, 304 (2004) (recognizing that court could not sentence
based on facts not admitted in defendant=s guilty plea). Martinez
has never been previously convicted under ' 1325. Moreover, the
indictment does not allege a prior commission of a violation of
' 1325, the issue was not submitted to a jury, and, under United
States v. Milam, 443 F.3d 382 (4th Cir. 2006), Martinez did not
admit any prior commission of a ' 1325 offense as part of his
guilty plea. Accordingly, the district court=s conclusion that the
statutory maximum penalty for Martinez was two years rather than
six months was erroneous.
Because Martinez=s sentence violates Apprendi, we vacate his
sentence and remand for resentencing. 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.
VACATED AND REMANDED
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