Summary
In United States v. Cerna-Salguero, 399 F.3d 887 (8th Cir. 2005), the defendant argued that 8 U.S.C. § 1326(b)(2) is a separate crime and that he had a Sixth Amendment right to a jury trial for violating and being sentenced under the statute.
Summary of this case from Santamaria-Hernandez v. U.S.Opinion
No. 04-3474.
Submitted: January 18, 2005.
Filed: March 3, 2005.
Appeal from the United States District Court for the Southern District of Iowa.
Terry Wright, Des Moines, IA, for appellant.
William C. Purdy, AUSA, Des Moines, IA, for appellee.
Before MORRIS SHEPPARD ARNOLD, FAGG, and GRUENDER, Circuit Judges.
Wilton Antonio Cerna-Salguero pleaded guilty to one count of being an illegal alien found in the United States following deportation in violation of 8 U.S.C. § 1326(a). The district court increased Cerna-Salguero's sentence under 8 U.S.C. § 1326(b)(2), which provides a maximum sentence of twenty years if the alien had an earlier aggravated felony conviction.
The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa.
Cerna-Salguero appeals arguing § 1326(b)(2) is a separate crime and thus he has a Sixth Amendment right to a jury trial for violating and being sentenced under the statute. Cerna-Salguero acknowledges the Supreme Court rejected this argument in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and declined to revisit Almendarez-Torres in Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held, "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." Cerna-Salguero also acknowledges we have continued to follow Almendarez-Torres after Apprendi. United States v. Perez-Perez, 337 F.3d 990, 997 (8th Cir. 2003) (stating plain language of Apprendi excepts the fact of earlier convictions from its holding, and thus § 1326(b)(2) does not violate the Sixth Amendment); United States v. Alvarez, 320 F.3d 765, 767 (8th Cir. 2002) (stating we must follow Almendarez-Torres until overruled by the Supreme Court); United States v. Kempis-Bonola, 287 F.3d 699, 702 (8th Cir. 2002) (having refused to revisit Almendarez-Torres in Apprendi,"the legal landscape is clear: Almendarez-Torres has not been overruled"). Cerna-Salguero candidly acknowledges in his brief that his claim has been rejected by the Supreme Court and "unless pending [guidelines] cases change the law" his appeal fails. The Supreme Court has now decided these cases, and in so doing the Court did not overrule Almendarez-Torres. See United States v. Booker, ___ U.S. ___, ___, 125 S.Ct. 738, 756, ___ L.Ed.2d ___, ___ (2005).
We thus reject Cerna-Salguero's Sixth Amendment challenge to his sentence, and affirm. See 8th Cir. R. 47A(a).