                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4554


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine,
a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin
Aranda, a/k/a Lopez Aranda, a/k/a Recardo Lopez,

                Defendant - Appellant.



                              No. 14-4781


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine,
a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin
Aranda, a/k/a Lopez Aranda, a/k/a Recardo Lopez,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.       Glen E. Conrad, Chief
District Judge. (7:13-cr-00026-GEC-1; 7:13-cr-00052-GEC-1)


Submitted:   April 30, 2015                 Decided:   May 20, 2015
Before NIEMEYER, AGEE, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Samuel A. Walker, Orlando, Florida, for Appellant.     Anthony P.
Giorno, Acting United States Attorney, C. Patrick Hogeboom, III,
Assistant United States Attorney, Roanoke, Virginia; Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Ricardo Augustin Lopez Aranda pled guilty to one count of

being     an     alien       found    in   the      United    States     after    removal

following conviction of an aggravated felony in violation of 8

U.S.C. § 1326(a), (b)(2) (2012).                    He was sentenced to 27 months’

imprisonment.            At the sentencing hearing, the district court

also found Aranda guilty of violating the terms of supervised

release imposed pursuant to a 2009 conviction for being found in

the   United      States      after    prior       removal    after    conviction       of    a

felony.        The court sentenced Aranda to 24 months’ imprisonment

on the revocation, to run consecutively to the 27-month term.

The court also imposed a three-year term of supervised release.

Aranda appeals.          Finding no error, we affirm.

      Aranda         first    contends     that      the     “found    in”   offense         in

§ 1326(a)(2) is an unconstitutional status offense because it

does not require an “actus reus” and thus violates the Eighth

Amendment       in    light     of    Robinson      v.   California,     370     U.S.    660

(1962).        Because Aranda did not raise this issue in the district

court, we review the claim for plain error. 1                         Puckett v. United



      1
        The government notes that a defendant’s guilty plea
normally waves antecedent defects.    See Tollett v. Henderson,
411 U.S. 258 (1973). Because Aranda contends that § 1326(a)(2)
facially violates the Eighth Amendment, the government concedes
that Tollett does not bar this Court’s review. See Menna v. New
York, 423 U.S. 61 (1975).      For this reason, the government
(Continued)
                                               3
States, 556 U.S. 129, 134-35 (2009).                    To establish plain error,

Aranda     must    demonstrate     that     (1)    an    error   occurred,     (2)    the

error     was   plain,    and   (3)   the      error     affected   his    substantial

rights.      United States v. Olano, 507 U.S. 725, 732 (1993).                       Even

if Aranda meets these requirements, the Court will correct the

error only if it “seriously affects the fairness, integrity or

public reputation of judicial proceedings.”                      Henderson v. United

States, 133 S. Ct. 1121, 1126-27 (2013) (alteration and internal

quotation marks omitted).

      Courts       of   appeals    that     have    addressed       the    claim     that

§ 1326(a)(2) is an unconstitutional status crime have held that

the       “found    in”    offense        in      that     section        is   not     an

unconstitutional          status      crime         under        Robinson      because

§ 1326(a)(2) necessarily requires that a defendant commit the

act of reentering the United States without permission within

five years of being deported.                   See United States v. Tovias-

Marroquin, 218 F.3d 455, 457 (5th Cir. 2000); United States v.

Ayala, 35 F.3d 423, 426 (9th Cir. 1994).                    We likewise find this

claim to be without merit. 2              We further reject Aranda’s claim



declines to invoke the appeal waiver provision in Aranda’s plea
agreement.
      2
       As the Attorney General notes, Aranda admitted at his
revocation hearing that he illegally reentered the United States
after being removed following his 2009 conviction.


                                            4
that the statute is unconstitutionally vague.                                 See id. at 424-

25; United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir.

1994), overruled on other grounds by United States v. Aguirre-

Tello, 353 F.3d 1199 (10th Cir. 2004) (en banc); United States

v. Whittaker, 999 F.2d 38, 42-43 (2d Cir. 1993).

      Next,    Aranda       asserts       that       trial     counsel        was    ineffective

under   the        Sixth    Amendment        by      failing         to    raise     the    above

constitutional        claims.          Unless        an    attorney’s         ineffectiveness

conclusively        appears    on      the      face      of   the    record,        ineffective

assistance claims are not generally addressed on direct appeal.

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).

Instead,   such       claims     should         be     raised    in       a   motion       brought

pursuant      to    28     U.S.C.    §     2255       (2012),        in    order     to    permit

sufficient         development       of      the      record.             United     States    v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).                                    Accordingly,

because the record does not conclusively establish ineffective

assistance of counsel, Aranda’s claim should be raised, if at

all, in a § 2255 motion.

      Finally, Aranda asserts that the district court’s 24-month

sentence imposed for his supervised release violations amounts

to cruel and unusual punishment under the Eighth Amendment where

the   criminal       statute     for      the      underlying        conviction        does   not

require an actus reus.              In 2009, Aranda was sentenced in federal

district court in Texas pursuant to his first conviction under

                                                 5
§ 1326.        The    sentence       included        a   term    of    supervised             release

which     he    was     serving       and        violated       by     being       subsequently

convicted      of     forgery    and       reentering       the      United       States        again

illegally       and     failing       to     report       to     probation.               Aranda’s

challenge      to     § 1326(a)(2)          in    this    context           is    in     effect    a

collateral attack on his 2009 conviction.                                  Such argument may

only be properly raised on direct appeal of that conviction or

in a habeas corpus proceeding under § 2255.                                In any event, the

constitutional         claim    is     meritless,         and     Aranda         sets    forth     no

other   challenges        to    the        supervised       release          proceeding,         the

court’s findings, or his sentence.

     We accordingly affirm the district court’s judgments.                                        We

dispense       with     oral    argument          because        the       facts        and    legal

contentions      are    adequately          presented       in       the    materials          before

this court and argument would not aid the decisional process.



                                                                                          AFFIRMED




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