UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 06-4188



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

            versus

FRANCISCO    JAVIER     FERREIRA,   a/k/a    Javier
Santana,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00224-WLO)


Submitted:    August 9, 2006                Decided:   September 6, 2006


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Nils E. Gerber, Winston-Salem, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Angela H. Miller, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a plea agreement, Francisco Javier Ferreira

pled guilty to one count of reentry of a deported alien felon, in

violation of 8 U.S.C. § 1326(a), (b)(2) (2000).    Ferreira appeals,

challenging the sixty-five-month prison sentence imposed by the

district court.     We affirm.

            Ferreira first asserts that the district court violated

his Sixth Amendment rights by applying a sixteen-level enhancement

based upon his prior conviction of a crime of violence because that

offense was neither charged in the superseding indictment nor

admitted by him. Ferreira concedes that the Supreme Court ruled in

Almendarez-Torres v. United States, 

 (1998), that

§ 1326(b)(2) is a penalty provision, not an element of the offense

which must be charged in the indictment and proven beyond a

reasonable doubt.    In light of Apprendi v. New Jersey, 

(2000), and its progeny, he urges us to reexamine our conclusion

that Almendarez-Torres is still good law.      See United States v.

Cheek, 

, 352-53 (4th Cir.), cert. denied, 

 (2005).     However, “a panel of this court cannot overrule,

explicitly or implicitly, the precedent set by a prior panel of

this court.   Only the Supreme Court or this court sitting en banc

can do that.”     Scotts Co. v. United Indus. Corp., 

,
271-72 n.2 (4th Cir. 2002) (internal quotation marks and citation

omitted).

            Ferreira also argues that his sentence is unreasonable,

asserting that the district court erred by applying a sixteen-level


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enhancement to his offense level.            In determining a sentence, the

court must calculate and consider the guideline range, as well as

the sentencing factors set forth in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2006).        United States v. Hughes, 

, 546-47

(4th   Cir.    2005).      “[A]   sentence    within   the    proper   advisory

Guidelines range is presumptively reasonable.”               United States v.

Johnson, 

, 341 (4th Cir. 2006).

              Here, the district court properly calculated Ferreira’s

guideline range to include a sixteen-level enhancement under USSG

§ 2L1.2(b)(1)(A)(ii) because Ferreira was previously deported after

his 1992 New York conviction for attempted robbery in the second

degree.       Ferreira’s    sentence   also    is   within    the   twenty-year

statutory maximum.      See 8 U.S.C. § 1326(b)(2).           We therefore find

that the sentence is reasonable.

              Accordingly, we affirm Ferreira’s 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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