                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-5019



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


NOE ESCALERA,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-03-116)


Submitted:   June 22, 2005                 Decided:   July 19, 2005


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


Affirmed by unpublished per curiam opinion.


Ronald Carl True, Asheville, North Carolina, for Appellant. Thomas
Richard Ascik, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Noe Escalera pled guilty to unlawfully entering the

United States after deportation in violation of 8 U.S.C. § 1326(a),

(b)(2) (2000).    He was sentenced to forty-eight months in prison.

Escalera appeals, claiming his sentence was imposed in violation of

United States v. Booker, 125 S. Ct. 738 (2005).          We affirm his

conviction and sentence.

          In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the

Court held that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable    doubt.”   This   exception   originated   in   Almendarez-

Torres v. United States, 523 U.S. 224, 233-35 (1998), in which the

Supreme Court held that the government did not need to allege in

its indictment or prove beyond reasonable doubt that a defendant

had prior convictions for a district court to use those convictions

for purposes of enhancing a sentence.

          In United States v. Booker, 125 S. Ct. 738, 756 (2005),

the Supreme Court reaffirmed Apprendi, holding that “[a]ny fact

(other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established

by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt”.            We

recently held in United States v. Washington, 404 F.3d 834, 842-43


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(4th Cir. 2005), that not all prior convictions fall within the

Apprendi    exception     framework.          Applying    the    Supreme    Court’s

decision in Shepard v. United States, 125 S. Ct. 1254 (2005), we

found that relying on facts outside the indictment in order to

conclude a prior conviction for burglary was a crime of violence

that enhanced the defendant’s offense level was plain error.

However, Escalera’s case is distinguishable.                  In United States v.

Pierce, 278 F.3d 282, 286 (4th Cir. 2002), we held that the offense

of taking indecent liberties with a child falls within the federal

definition of a crime of violence as a matter of law.                   Thus, there

was no need for the district court to look at facts outside of the

indictment    in   the    case.        Accordingly,      we    affirm   Escalera’s

conviction and 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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