                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5084


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

EZEQUIEL JAIMES-BUSTOS, a/k/a Ruben Fernandez-Salamancha,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00089-FDW-1)


Submitted:    December 23, 2009             Decided:   January 7, 2010


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Charles R. Brewer, Asheville, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina; Kenneth Michel Smith, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Without a plea agreement, Ezequiel Jaimes-Bustos pled

guilty     to     reentering     the    United       States       after    having       been

deported     as    an   aggravated      felon,       in    violation      of   8    U.S.C.

§ 1326(a), (b)(2) (2006).              The district court sentenced him to

forty-one months in prison.            Jaimes-Bustos appeals.

             Counsel filed an Anders ∗ brief, in which he states that

there are no meritorious grounds for appeal, but challenges the

adequacy of the indictment in two regards.                         Jaimes-Bustos was

advised of his right to file a pro se supplemental brief but he

did not file one.

             Counsel contends that Jaimes-Bustos’ conviction should

be vacated because the indictment failed to allege an essential

element     of    his   crime,   namely       that    he    was    an     “alien.”        By

pleading     guilty,     Jaimes-Bustos        waived       any    challenge        to   this

non-jurisdictional alleged defect.               Menna v. New York, 423 U.S.

61,   62   n.2    (1975);   Tollett      v.    Henderson,         411   U.S.   258,      267

(1973); see United States v. Cotton, 535 U.S. 625, 630-31 (2002)

(noting that defects in an indictment are not jurisdictional).

In any event, this claim is without merit.                       See United States v.

De La Pava, 268 F.3d 157, 160-62 (2d Cir. 2001) (finding that

omission of the term “alien” did not render indictment charging

      ∗
          Anders v. California, 386 U.S. 738 (1967).



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§ 1326 violation invalid; only an alien may be deported from

United     States     and     needs        Attorney       General’s       permission       to

reenter).

            Section 1326 provides a two-year maximum sentence for

any alien who illegally enters the United States after having

been deported.       8 U.S.C. § 1326(a).                 If the alien’s removal was

subsequent     to    a    conviction         for     an    aggravated       felony,       the

statutory    maximum        penalty        increases      to     twenty    years.         Id.

§ 1326(b)(2).       Counsel claims that Jaimes-Bustos’ indictment was

“fatally    flawed”       because     it     did    not    specify        the   aggravated

felony upon which his sentence was enhanced under § 1326(b)(2).

However,    the     Supreme    Court        has    held    that       § 1326(b)(2)    is    a

“penalty    provision,”       not     an    element       of    the    offense,    and    the

underlying aggravated felony conviction need not be specified in

the indictment.           Almendarez-Torres v. United States, 523 U.S.

224, 226-27 (1998); see also United States v. Cheek, 415 F.3d

349, 352 (4th Cir. 2005) (holding that Almendarez-Torres was not

overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000), or

United    States     v.     Booker,    543        U.S.    220    (2005)).         Thus,    we

conclude that this argument is without merit.

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We     therefore       affirm        Jaimes-Bustos’         conviction       and

sentence.      This       court     requires       that    counsel        inform    Jaimes-

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Bustos, in writing, of the right to petition the Supreme Court

of   the    United   States    for   further    review.      If    Jaimes-Bustos

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 Jaimes-

Bustos.

              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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