UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                 No. 00-4642
JOSE HERNANDEZ-GUTIERREZ, a/k/a
Antonio Montana Flores,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
              Claude M. Hilton, Chief District Judge.
                         (CR-00-126-A)

                      Submitted: March 27, 2001

                       Decided: April 16, 2001

     Before LUTTIG, WILLIAMS, and KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Joaquin M. Sena, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2              UNITED STATES v. HERNANDEZ-GUTIERREZ
                             OPINION

PER CURIAM:

   Jose Hernandez-Gutierrez pled guilty to one count of reentry by a
deported alien in violation of 8 U.S.C.A. § 1326 (West 1999 & Supp.
2000). At sentencing, the district court found that Hernandez-
Gutierrez had been convicted of two prior aggravated felonies, mak-
ing the statutory maximum sentence a twenty-year term of imprison-
ment. See 8 U.S.C.A. § 1326(b)(2). Hernandez-Gutierrez argues that
he should have been sentenced under the provisions of § 1326(a),
which provides a maximum sentence of two years, because the gov-
ernment did not charge a violation of § 1326(b)(2) in the indictment.
We affirm.

   Because the Supreme Court has held that § 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, 

,
235 (1998). Contrary to Hernandez-Gutierrez’s assertions, we find
that Almendarez-Torres was not overruled by Apprendi v. New Jer-
sey, 

(2000). See United States v. Dabeit, 

,
984 (5th Cir. 2000) (finding that Apprendi did not overrule
Almendarez-Torres), cert. denied, 

(2001); United
States v. Gatewood, 

, 192 (6th Cir. 2000) (finding that,
despite Apprendi, Almendarez-Torres remains the law); see also
Columbia Union Coll. v. Clarke, 

, 158 (4th Cir. 1998)
(stating that lower courts should not presume that 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), cert. denied, 

(1999).

   Consequently, we affirm the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                                         AFFIRMED