UNITED STATES of America, Plaintiff-Appellee, v. Eduardo CORIA VIEYRA, Defendant-Appellant, 23 F. App'x 185

OPINION PER CURIAM. Eduardo Coria Vieyra pled guilty to one count of re-entry by a deported alien in violation of 8 U.S.C.A. § 1326 (West 1999); 18 U.S.C. § 2 (1994). The district court found, after the Government filed a notice of sentencing enhancement, that the statutory maximum sentence was twenty years incarceration. See 8 U.S.C.A. § 1326(b)(2). Coria Vieyra was thereupon sentenced to serve a prison term of fifty-seven months.

He argues on appeal that he should have been sentenced under the provisions of § 1326(a), which provides a maximum sentence of two years, because the Government did not charge a violation of § 1326(b)(2) in the indictment. Because the Supreme Court has held § 1326(b)(2) sets forth a sentencing factor rather than an element of the offense, this claim is without merit. See Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Contrary to Coria Vieyra’s assertions, Almendarez-Torres was not overruled by Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000) (finding Apprendi did not overrule Almendarez-Torres), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001); United States v. Gatewood, 230 F.3d 186, 192 (6th Cir.2000) (en banc) (finding that, despite Apprendi, Almendarez-Torres remains the law); see also Columbia Union College v.

Clarke, 159 F.3d 151, 158 (4th Cir.1998) (stating that lower courts should not presume the Supreme Court has overruled one of its cases by implication; courts must follow case law that directly controls unless clearly overruled by subsequent Supreme Court case). We accordingly find that Almendarez-Torres is controlling. Consequently, we affirm the sentence imposed by the district court. 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.