US v. Ezequiel Jaimes-Bustos, No. 08-5084 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5084 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EZEQUIEL JAIMES-BUSTOS, a/k/a Ruben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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 deported as reentering an the United States aggravated felon, in § 1326(a), (b)(2) (2006). after violation having of 8 been U.S.C. 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 pleading of his guilty, crime, namely that Jaimes-Bustos waived non-jurisdictional alleged defect. 61, 62 n.2 (1975); Tollett he v. was any an alien. challenge to By this Menna v. New York, 423 U.S. 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). 2 § 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). subsequent a statutory to maximum § 1326(b)(2). fatally conviction penalty for If the alien s removal was an aggravated increases to twenty felony, the years. Id. Counsel claims that Jaimes-Bustos indictment was flawed because it did not specify the aggravated felony upon which his sentence was enhanced under § 1326(b)(2). However, the Supreme penalty provision, Court not has an held element that of the § 1326(b)(2) offense, is and a the underlying aggravated felony conviction need not be specified in Almendarez-Torres v. United States, 523 U.S. the indictment. 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. sentence. We therefore This court affirm Jaimes-Bustos requires 3 that counsel conviction inform and Jaimes- 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 JaimesBustos. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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