                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4165



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SIXTO ESPINOZA-BARRETO, a/k/a Sixto Barreto-
Espinoza,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-04-393)


Submitted:   April 24, 2006                   Decided:   May 9, 2006


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Bryan Gates, Winston-Salem, North Carolina, for Appellant. Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Sixto    Espinoza-Barreto         pled       guilty    to    reentry     by   a

deported alien, in violation of 8 U.S.C. §§ 1326(a), (b)(2) (2000).

In February 2005, the district court sentenced Espinoza-Barreto to

sixty-eight    months’         imprisonment      and     three     years’       supervised

release.     In his appeal, filed pursuant to Anders v. California,

386 U.S. 738 (1967), counsel for Espinoza-Barreto claims that the

sentence    was    disproportionate         to     the    offense        committed,       in

violation     of    the    Eighth    Amendment;          that     the     sentence    was

unreasonable, in light of United States v. Booker, 543 U.S. 220

(2005); and that the fact of a prior conviction, which was used to

enhance    Espinoza-Barreto’s        sentence,         was   not       proven    beyond    a

reasonable    doubt,      in    violation     of   the    Sixth        Amendment.      The

Government elected not to file a brief.                      Although informed (in

English and Spanish) of his right to file a pro se brief, Espinoza-

Barreto has not done so.

            Three      factors       are    considered            in     conducting        a

proportionality review: (1) the gravity of the offense and the

harshness of the penalty, (2) the sentences imposed on other

criminals in the same jurisdiction, and (3) the sentences imposed

for commission of the same crime in other jurisdictions.                            United

States v. Kratsas, 45 F.3d 63, 66 (4th Cir. 1995) (quoting Solem v.

Helm, 463 U.S. 277, 292 (1983)).              We find that Espinoza-Barreto’s

sentence, which is well below the statutory maximum of twenty


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years’ imprisonment, see 8 U.S.C. § 1326(a) (2000), and within the

range    advised     by    the    United    States      Sentencing     Guidelines,

withstands a proportionality analysis.

              Further, the sentence is reasonable.               After Booker, a

sentencing court is no longer bound by the range prescribed by the

sentencing guidelines.           See United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005).             However, in determining a sentence post-

Booker, sentencing courts are still required to calculate and

consider the guideline range prescribed thereby as well as the

factors set forth in 18 U.S.C. § 3553(a) (2000).                 Id.; see United

States v. Green, 436 F.3d 449 (4th Cir. 2006). Post-Booker, a

sentence      will   be   affirmed    if    it   is    within   the    statutorily

prescribed range and is reasonable.              Id. at 546-47.       In addition,

“while we believe that the appropriate circumstances for imposing

a sentence outside the guideline range will depend on the facts of

individual cases, we have no reason to doubt that most sentences

will    continue     to   fall    within   the   applicable     range.”     United

States v. White, 405 F.3d 208, 219 (4th Cir. 2005).                   “[A] sentence

imposed within the properly calculated Guidelines range . . . is

presumptively reasonable.”             Green, 436 F.3d at 457 (internal

quotation marks and citation omitted).                Here, the record is clear

that    the   district     court    calculated        and   considered    both   the

guideline range and the § 3553(a) factors.                  Espinoza-Barreto has




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not rebutted the presumption that the district court imposed a

reasonable sentence.

            Counsel’s    final      issue    is   foreclosed     by   Almendarez-

Torres v. United States, 523 U.S. 224 (1998).                    In Almendarez-

Torres, 523 U.S. at 233-35, the Supreme Court held that the

government need not allege in its indictment and need not prove

beyond reasonable doubt that a defendant had prior convictions for

a district court to use those convictions for purposes of enhancing

a sentence.      Although the opinion in Apprendi v. New Jersey, 530

U.S. 466 (2000), expressed some uncertainty regarding the future

vitality of Almendarez-Torres, we have subsequently concluded that

Almendarez-Torres was not overruled by Apprendi, and remains the

law.     See United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.

2005).

            In accordance with Anders, we have reviewed the entire

record and have found no meritorious issues for appeal.                       We

therefore affirm Espinoza-Barreto’s conviction and sentence.                 This

court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for

further review.     If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel    may   move   in   this    court    for   leave   to    withdraw   from

representation.     Counsel’s motion must state that a copy thereof

was served on the client.        We dispense with oral argument because


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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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