                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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