                               UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



                                      2
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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