United States v. Jose Trejo

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4578
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE NOEL VILLALTA TREJO, a/k/a Elmer Rodriguez Vialta,
a/k/a Jose Noel Villailta Trejo, a/k/a Jose Trejo, a/k/a
Cleto Federico Trinin Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T.S. Ellis, III, Senior
District Judge. (1:14-cr-00061-TSE-1)
Submitted: March 3, 2015 Decided: March 10, 2015
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Gul Raza Gharbieh, Assistant Federal
Public Defender, Alexandria, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Adam Ptashkin, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Noel Villalta Trejo appeals his 30-month sentence,
imposed following his guilty plea to unlawful reentry after
removal, in violation of 8 U.S.C. § 1326(a) (2012). In light of
Trejo’s prior conviction for an aggravated felony, he was
subject to the 20-year statutory maximum set forth in 8 U.S.C.
§ 1326(b) (2012).
On appeal, Trejo claims that 8 U.S.C. Ҥ 1326(b) defines a
separate, aggravated offense, and that, because [his] indictment
did not allege a prior conviction, it charged only a violation
of § 1326(a).” (Appellant’s Br. at 8). He therefore argues
that his 30-month sentence exceeds the 2-year statutory maximum
set forth in § 1326(a), in violation of “his due process, grand
jury, and jury trial rights under the Fifth and Sixth
Amendments.” (Id.).
This claim, as acknowledged by Trejo, is squarely
foreclosed by the Supreme Court’s decision in Almendarez-
Torres v. United States, 523 U.S. 224, 226-27 (1998). See
United States v. McDowell, 745 F.3d 115, 124 (4th Cir. 2014)
(“Almendarez-Torres remains good law, and we may not disregard
it unless and until the Supreme Court holds to the contrary.”),
cert. denied, 135 S. Ct. 942 (2015); United States v. Graham,
711 F.3d 445, 455 (4th Cir.) (“[W]e are bound by Almendarez-
2
Torres unless and until the Supreme Court says otherwise.”),
cert. denied, 134 S. Ct. 449 (2013).
Accordingly, we affirm the criminal judgment. We dispense
with oral argument because the facts and legal contentions are
adequately expressed in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
3