                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4030



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

REY ROJAS DELAMOS, a/k/a Rojas Delamos, a/k/a
Reynaldo Jajas Delalama,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:06-cr-00122-BR)


Submitted:   September 19, 2007           Decided:   October 22, 2007


Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A federal grand jury charged Rey Rojas DeLamos in a

single count indictment with illegal reentry of a removed alien, in

violation of 8 U.S.C. § 1326 (2000).              DeLamos pled guilty.           He now

appeals the ninety—six—month prison term imposed by the district

court.   We affirm.

            DeLamos       argues     that   the   district        court    improperly

sentenced     him    to   a   term   exceeding      two   years    under     8   U.S.C.

§ 1326(b) (2000) because his prior aggravated felony conviction was

not charged in the indictment and proved beyond a reasonable doubt.

Under § 1326(a), an alien who illegally returns to the United

States after being removed may be imprisoned for up to two years.

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; if the alien was deported after conviction of a

non-aggravated felony, the maximum sentence is ten years under

§ 1326(b)(1).

            DeLamos       concedes     that   the    Supreme       Court    ruled    in

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

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

which must be charged in the indictment and proven beyond a

reasonable doubt.         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


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Almendarez-Torres,   we    have    subsequently   concluded   that

Almendarez-Torres was not overruled by Apprendi, and remains the

law. See United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.),
cert. denied, 546 U.S. 1010 (2005).     We therefore conclude that

DeLamos’ claim is without merit.

          Accordingly, we affirm DeLamos’ 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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