                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4611



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

JORGE PLATA-OCEGUERA,
                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-165)


Submitted:   July 31, 2006                 Decided:   August 24, 2006


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. David James, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Angela H. Miller, Michael F. Joseph, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Pursuant to a plea agreement, Jorge Plata-Oceguera pled

guilty to one count of reentry of an aggravated felon, in violation

of 8 U.S.C. § 1326(a) (2000).         Plata-Oceguera appeals, challenging

the fifty-four month prison sentence imposed by the district court.

We affirm.

             Plata-Oceguera    first    argues    that      the   district    court

improperly sentenced him to a term exceeding two years under 8

U.S.C.   §    1326(b)(2)    (2000).     Under     §    1326(a),      an   alien   who

illegally returns to the United States after being removed may be

imprisoned for up to two years.           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.

             Plata-Oceguera concedes that the Supreme Court ruled in

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

§ 1326(b)(2) is a penalty provision, not an element of the offense

which must be charged in the indictment and proven beyond a

reasonable doubt.     However, he contends that Almendarez-Torres was
called into question by the Supreme Court’s opinion in Apprendi v.
New Jersey, 530 U.S. 466 (2000), and its progeny and should no

longer   be    considered     binding    precedent.          Although      Apprendi

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.), cert.

denied, 126 S. Ct. 640 (2005).


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           Next, Plata-Oceguera asserts that the district court

erred in adopting the findings in the presentence investigation

report (“PSR”) that a sixteen-level increase in offense level was

warranted under U.S. Sentencing Guidelines Manual § 2L1.2 (2003),

because Plata-Oceguera’s 1997 drug conspiracy conviction resulted

in a twenty-five month sentence and qualified as an aggravated

felony.    To the extent that Plata-Oceguera challenges the finding

that the length of his 1997 sentence was twenty-five months, we

find that he failed to meet his burden of showing that information

relied upon by the district court was incorrect.          United States v.
Love, 134 F.3d 595, 606 (4th Cir. 1998); United States v. Terry,

916 F.2d 157, 162 (4th Cir. 1990).

           We   also    reject   Plata-Oceguera’s      argument   that   the

district court miscalculated his guideline range.          In determining

a sentence, the court must calculate and consider the guideline

range, as well as the sentencing factors set forth in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2006).         United States v. Hughes, 401

F.3d 540, 546-47 (4th Cir. 2005).          “A sentence within the proper
advisory Guidelines range is presumptively reasonable.”              United
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).

           Section     2L1.2(b)(1)(A)(I)    of   the   federal    sentencing

guidelines applies a sixteen-level enhancement if the defendant was

previously deported after “a conviction for a felony that is . . .

a drug trafficking offense for which the sentence exceeded 13

months.”    Here, the district court properly calculated Plata-

Oceguera’s guideline range to include a sixteen-level enhancement


                                   - 3 -
under   USSG    §   2L1.2(b)(1)(A)(i)     because    Plata-Oceguera       was

previously deported after his 1997 drug trafficking conviction for

which he received a twenty-five month sentence.           We therefore find

that Plata-Oceguera’s sentence was within the statutory maximum and

was reasonable.

           For these reasons, we affirm Plata-Oceguera’s 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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