United States v. Luis Ramirez-Gil

6 F. App'x 518

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 30, 2001
• Docket: 00-3532
• Status: Unpublished

Opinion

PER CURIAM.

Luis Santiago Ramirez-Gil pleaded guilty to illegally re-entering the United States after deportation, in violation of 8 U.S.C. § 1326(a). His sentence was enhanced under 8 U.S.C. § 1326(b)(2) and U .S.S.G. § 2L1.2(b)(l)(A) because he had previously been deported after being convicted of an aggravated felony. The District Court 1 sentenced him to 46 months imprisonment and 3 years supervised release.

Ramirez-Gil argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), required the government to charge the fact of his prior aggravated-felony conviction in the indictment. Apprendi, Ramirez-Gil argues, overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which had held that an earlier aggravated-felony conviction is a sentencing factor under 8 U.S.C. § 1326(b) that need not be charged as an element of the offense. Apprendi, however, held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.” 120 S.Ct. at 2362-63 (emphasis added). The Apprendi Court also explicitly declined to overrule Almendarez-Torres. Id. at 2362. Likewise, we decline to read Apprendi as disturbing the holding of Almendarez-Torres. See United States v. Rush, 240 F.3d 729, 731 (8th Cir.2001) (noting that Apprendi does not apply to fact of prior conviction); United States v. Aguayo-Delgado, 220 F.3d 926, 932 n. 4 (8th Cir.) (“In Apprendi, the Court left Almendarez-Torres untouched”), cert. denied, — U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000).

Accordingly, we affirm.

1 . The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska.