Filed: May 26, 2006
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 05-3468 _ United States of America, * * Appellee, * Appeal from United States * District Court for the Eastern v. * District of Arkansas. * Martin Espinoza-Naranjo, also known * [UNPUBLISHED] as George Gonzales, also known as * George Gonzalez, * * Appellant. * _ Submitted: May 18, 2006 Filed: May 26, 2006 _ Before MURPHY, BEAM, and BENTON, Circuit Judges. _ PER CURIAM. Appellant Espinoza-Naranjo pleaded guilty to illegal re-entry into
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 05-3468 _ United States of America, * * Appellee, * Appeal from United States * District Court for the Eastern v. * District of Arkansas. * Martin Espinoza-Naranjo, also known * [UNPUBLISHED] as George Gonzales, also known as * George Gonzalez, * * Appellant. * _ Submitted: May 18, 2006 Filed: May 26, 2006 _ Before MURPHY, BEAM, and BENTON, Circuit Judges. _ PER CURIAM. Appellant Espinoza-Naranjo pleaded guilty to illegal re-entry into t..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3468
___________
United States of America, *
*
Appellee, * Appeal from United States
* District Court for the Eastern
v. * District of Arkansas.
*
Martin Espinoza-Naranjo, also known * [UNPUBLISHED]
as George Gonzales, also known as *
George Gonzalez, *
*
Appellant. *
___________
Submitted: May 18, 2006
Filed: May 26, 2006
___________
Before MURPHY, BEAM, and BENTON, Circuit Judges.
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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 court1 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 (2005); United States v. Booker,
543 U.S. 220 (2005); Blakely
v. Washington,
542 U.S. 296 (2004); Apprendi v. New Jersey,
530 U.S. 466 (2000).
We are bound by our precedent in United States v. Cerna-Salguero,
399 F.3d
887 (8th Cir.), cert. denied,
125 S. Ct. 2936 (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). And, contrary to Appellant's
argument, the Supreme Court has not overruled Apprendi nor Almendarez-Torres v.
United States,
523 U.S. 224 (1998).
Finally, Appellant's guilty plea to a section 1326(b)(2) offense precludes his
arguments because pleading guilty to a violation of section 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
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
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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.
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