                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4185



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


ATANASIO NAVA-VEGA,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:07-cr-00110-RJC-1)


Submitted:   September 25, 2008           Decided:   October 9, 2008


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


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ross H. Richardson, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:

            Atanasio Nava-Vega pled guilty to illegal reentry after

deportation   following      conviction      of   an   aggravated    felony,   in

violation of 8 U.S.C. § 1326(a), (b)(2) (2000), and was sentenced

to fifty-two months’ imprisonment. He now appeals, questioning the

constitutionality of 8 U.S.C. § 1326(b)(1) and (2) in the wake of

Apprendi v. New Jersey, 530 U.S. 466 (2000).                 We affirm.

            Because Nava-Vega did not raise the constitutionality of

§ 1326(b) before the district court, we review for plain error.

See United States v. Olano, 507 U.S. 725, 731-32 (1993).                  Section

1326(a) provides a two-year maximum term of imprisonment for any

alien who illegally returns to the United States after having been

deported.    8 U.S.C. § 1326(a).         If the removal was subsequent to a

conviction    for    an    aggravated     felony,      the   statutory    maximum

increases to twenty years. Id. § 1326(b)(2). In Almendarez-Torres

v. United States, 523 U.S. 224, 233-36, 243-44 (1998), the Supreme

Court held that § 1326(b)(2) is a sentencing factor rather than a

separate criminal offense.         We have expressly determined that the

holding in Almendarez-Torres was not overruled by Apprendi and

remains the law.     United States v. Sterling, 283 F.3d 216, 220 (4th

Cir. 2002).       We therefore conclude that Nava-Vega’s claim is

without   merit     and   affirm   the   district      court’s   judgment.     We

dispense with oral argument because the facts and legal contentions




                                         2
are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                      AFFIRMED




                                3
