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U.S. v. Raya-Ramirez

United States Court of Appeals, Eighth Circuit
Mar 29, 2001
244 F.3d 976 (8th Cir. 2001)

Summary

rejecting the argument that the enhanced sentence of § 1326(b) is unconstitutional where the aggravated felony was neither proved to a jury nor admitted through the defendant's guilty plea

Summary of this case from U.S. v. Kempis-Bonola

Opinion

No. 00-3839NE.

Submitted: March 20, 2001.

Filed: March 29, 2001.

Appeal from the Court of Appeals, Morris Sheppard Arnold, Circuit Judge.

Mary H. Buckley, Jennifer L. Gilg, Federal Public Defenders, Omaha, NE, for appellant.

Daniel A. Morris, Asst. U.S. Atty., Omaha, NE, for appellee.

Before RICHARD S. ARNOLD, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


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 sentenced him to five years and ten months (70 months) imprisonment and three years supervised release.

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

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, ___ U.S. ___, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). Accordingly, we affirm.


Summaries of

U.S. v. Raya-Ramirez

United States Court of Appeals, Eighth Circuit
Mar 29, 2001
244 F.3d 976 (8th Cir. 2001)

rejecting the argument that the enhanced sentence of § 1326(b) is unconstitutional where the aggravated felony was neither proved to a jury nor admitted through the defendant's guilty plea

Summary of this case from U.S. v. Kempis-Bonola
Case details for

U.S. v. Raya-Ramirez

Case Details

Full title:UNITED STATES of America, Appellee, v. Jose Arturo RAYA-RAMIREZ, Appellant

Court:United States Court of Appeals, Eighth Circuit

Date published: Mar 29, 2001

Citations

244 F.3d 976 (8th Cir. 2001)

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