                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4611



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


WAGNER BARRERA, a/k/a Wagner Mardoqueo Babbera
Najarro,   a/k/a   Wagner  Mardoqueo   Barrera
Najarro, a/k/a Wagner M. Barrera Najarro,
a/k/a Wagner M. Barrera, a/k/a Wagner Mondogeo
Barreaa,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:07-cr-00003-sgw)


Submitted:   December 19, 2007            Decided:   January 11, 2008


Before MOTZ, TRAXLER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Andrea Harris, Assistant
Federal Public Defender, Christine Madeleine Spurell, Research and
Writing Attorney, Charlottesville, Virginia, for Appellant. Bruce
A. Pagel, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Wagner Barrera pled guilty to illegal entry after being

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

(2000), and 18 U.S.C. § 2 (2000).          He was sentenced to fifty-seven

months of imprisonment.        His counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting there are no

meritorious    issues    for     appeal,   but    raising    for   the   court’s

consideration whether Barrera’s constitutional rights were violated

because his sentence was increased based on a prior conviction not

alleged in the indictment.          Barrera was notified of his right to

file a pro se supplemental brief, but has not done so.                       The

Government did not file a reply brief. After reviewing the record,

we affirm.

             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).     Barrera argues that the district court improperly

sentenced him to a term exceeding two years under § 1326(b) because

his prior aggravated felony conviction was not charged in the

indictment.

             Barrera    concedes    that    the    Supreme   Court   ruled   in

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


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

and the aggravated felony conviction need not be charged in the

indictment. 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.                  United States v.

Sterling, 283 F.3d 216, 220 (4th Cir. 2002); see also United States

v.   Cheek,    415   F.3d    349,   352-53    (4th   Cir.   2005)   (reaffirming

continuing validity of Almendarez-Torres after United States v.

Booker, 543 U.S. 220 (2005)). We therefore conclude that Barrera’s

claim is without merit.

              In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                   We

therefore affirm Barrera’s conviction and sentence.                  This court

requires that counsel inform Barrera, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Barrera 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 Barrera.                 We

dispense with oral argument because the facts and legal contentions


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are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                      AFFIRMED




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