United States v. Razo

21 F. App'x 460

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 16, 2001
• Docket: No. 01-1342
• Status: Published

Opinion

ORDER

Hector Razo, a Mexican citizen, pleaded guilty to being present in the United States without the express consent of the Attorney General after having been deported, 8 U.S.C. § 1326(a), and was sentenced to 57 months’ imprisonment. Razo had been deported after serving a 60-month prison term for conspiracy to possess cocaine with intent to distribute, an aggravated felony. See 21 U.S.C. §§ 846, 841(a)(1); 8 U.S.C. § 1101(a)(43). As a result of his prior conviction he faced a maximum prison term of 20 years, rather than the two-year default maximum. Compare 8 U.S.C. § 1326(b)(2) with id. § 1326(a).

On appeal Razo maintains that his sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the prior conviction used to support the increased maximum was not charged in the indictment. The Supreme Court has held otherwise; the recidivist enhancement found in § 1326(b)(2) is a sentencing factor, not an element of the offense, and there exists no constitutional requirement that it be treated as something more. Almendarez-Torres v. United States, 523 U.S. 224, 235-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Relying on Apprendi, Razo questions the continued validity of Almendarez-Torres,. but as we have repeatedly stated, we do not read Apprendi as having overruled Almendarez-Torres. See Dahler v. United States, 259 F.3d 763, 765-66 (7th Cir.2001); United States v. Skidmore, 254 F.3d 635, 642 (7th Cir.2001); United States v. Brough, 243 F.3d 1078, 1081 (7th Cir.2001). Accordingly, we AFFIRM the judgment of the district court.