United States v. M. Espinoza-Naranjo

182 F. App'x 610

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 26, 2006
• Docket: 05-3468
• Status: Unpublished

Opinion

PER CURIAM.

Appellant Espinoza-Naranjo pleaded guilty to illegal re-entry into the United States after deportation in violation of 8 U.S.C. § 1326(b)(2). The indictment alleged that this offense occurred subsequent to an aggravated felony conviction— possession of cocaine for sale — as described by 8 U.S.C. § 1101(a)(43)(B). The presentence investigation report (PSR) prepared by the United States probation officer calculated a sixteen-level increase to the base offense level of eight based upon the prior felony conviction. The suggested guideline sentence in the PSR was seventy-seven to ninety-six months. Appellant objected to the suggested sixteen-level increase prior to sentencing. The district court 1 adopted the recommendation set forth in the PSR, gave Appellant credit for time served in state prison, and imposed a forty-two month sentence of imprisonment.

Citing Shepard, Booker, Blakely, and Apprendi, Appellant argues that the district court made findings of fact by a preponderance of the evidence when it enhanced Appellant’s sentence based upon his alleged criminal history and that such factfinding violated his Sixth Amendment right to be judged by a jury of his peers, as well as his due process rights under the Fifth Amendment. Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

We are bound by our precedent in United States v. Cerna-Salguero, 399 F.3d 887 (8th Cir.), cert. denied, — U.S. —, 125 S.Ct. 2936, 162 L.Ed.2d 871 (2005), which clearly recognizes the Supreme Court’s rejection of Appellant’s arguments. “ ‘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 a jury, and proved beyond a reasonable doubt.’ ” Id. (quoting Apprendi 530 U.S. at 489-90, 120 S.Ct. 2348). And, contrary to Appellant’s argument, the Supreme Court has not overruled Apprendi nor Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Finally, Appellant’s guilty plea to a § 1326(b)(2) offense precludes his arguments because pleading guilty to a violation of § 1326(b)(2) is tantamount to admitting that his removal was preceded by a conviction of an aggravated felony. “[I]n the case of any alien described in such subsection whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both.” 8 U.S.C. § 1326(b)(2).

We thus reject Appellant’s constitutional challenges to his sentence, and affirm.

1 . The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.