UNITED STATES v. RAYA RAMIREZ (2001)

Jose Arturo Raya-Ramirez 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)(1)(A) because he had previously been deported after being convicted of an aggravated felony (four of them, in fact).   The District Court ¹ sentenced him to five years and ten months (70 months) imprisonment and three years supervised release.

Raya-Ramirez argues on appeal that because the fact of a prior aggravated-felony conviction was not alleged in the indictment and was neither proved to a jury nor admitted through his guilty plea, the enhanced sentence violates the standards announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).   We reject this argument.  Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which upheld the validity of the section 1326(b)(2) aggravated-felony enhancement for section 1326(a) violators, was not overruled by Apprendi.   See 120 S.Ct. at 2362;  United States v. Cortez-Delatorre, No. 00-2066, 2000 WL 1665078 (8th Cir., Nov.7, 2000);  United States v. Aguayo-Delgado, 220 F.3d 926, 932 n. 4 (8th Cir.) (“In Apprendi, the Court left Almendarez-Torres untouched, although ․ [it] expressed a willingness to reconsider it.”), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000).   Accordingly, we affirm.

FOOTNOTES

1.   The Honorable Thomas M. Shanahan, United States District Judge for the District of Nebraska.

MORRIS SHEPPARD ARNOLD, Circuit Judge.