                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4716



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DANIEL C. GARDENER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.  Lacy H. Thornburg,
District Judge. (CR-03-191)


Submitted:   January 25, 2006          Decided:     February 13, 2006


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Holly A. Pierson, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Daniel C. Gardener appeals his fifty-seven month prison

sentence resulting from his conviction for illegal reentry after

deportation in violation of 8 U.S.C. §§ 1326(a), (b)(2) (2000).*

Finding no reversible error, we affirm.

             Gardener contends the indictment did not establish that

he had a prior conviction under § 1326(b)(2).                The indictment

established the elements of § 1326(a), but only stated that he

violated § 1326(b)(2) and did not describe that he had a drug

trafficking conviction that was an aggravated felony. However, the

Supreme Court has ruled that § 1326(b)(2) is a “penalty provision,”

not an element of the offense, and an underlying aggravated felony

conviction need not be charged 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 (4th Cir. 2005) (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 the indictment sufficiently charged the illegal reentry

prior conviction upon which Gardener’s sentence was based.

             Relying on Booker, Gardener also claims that the prior

conviction    was   not   proven   beyond   a   reasonable   doubt   and   his

sentencing enhancement was improper.            In Almendarez-Torres, the

Supreme Court held that the government need not allege in its


     *
      Gardener does not appeal his conviction.

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indictment and need not prove beyond reasonable doubt that a

defendant had prior convictions for a district court to use those

convictions for purposes of enhancing a sentence.      Almendarez-

Torres, 523 U.S. at 233-36, 243-44.     As a result, the district

court did not err when it used Gardener’s prior convictions to

calculate his sentence.

          Accordingly, we affirm the district court’s judgment. 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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