1 The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 04-3733

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the Western v. * District of Missouri. * Juan Roldan-Castillo, * [UNPUBLISHED] * Appellant. *

___________ Submitted: May 10, 2005 Filed: June 6, 2005

___________ Before LOKEN, Chief Judge, BEAM, and SMITH, Circuit Judges.

___________ PER CURIAM. Juan Roldan-Castillo pled guilty to illegal reentry by a deported alien in violation of 8 U.S.C. § 1326(a)(2) and (b)(1). Based upon his plea and the presentence investigation report, the district court 1 sentenced Roldan-Castillo to an eighteen-month prison term. Roldan-Castillo appeals, arguing that the district court should have submitted to the jury the question whether his prior conviction was an "aggravated felony." Roldan-Castillo properly preserved this Sixth Amendment challenge under Blakely v. Washington , 124 S. Ct. 2531 (2004), at the time of-2- sentencing. Because Roldan-Castillo was not entitled to jury findings on the issue of whether his prior conviction was an aggravated felony, we affirm.

In Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998), the Court held that a prior felony conviction, including the characterization of a particular felony as an "aggravated felony," is a sentencing factor for the court, rather than a fact issue for the jury. That principle was reaffirmed in United States v. Booker , 125 S. Ct. 738, 756 (2005). The district court based its enhancement on Roldan-Castillo's prior guilty plea to possession of a controlled substance. See U.S.S.G. § 2L1.2, cmt. n.3(A) (defining aggravated felony by reference to 8 U.S.C. § 1101(a)(43)). This prior offense was contained in the presentence investigation report and Roldan-Castillo does not deny its existence. The United States Code defines aggravated felony to include illicit trafficking in a controlled substance, including a drug trafficking crime as defined in18 U.S.C. § 924(c). 8 U.S.C. § 1101(a)(43)(B). Under 18 U.S.C. § 924(c), RoldanCastillo's conviction is an aggravated felony if it is punishable under the Controlled Substances Act, and it is a felony. 18 U.S.C. § 924(c)(2); United States v. Haggerty , 85 F.3d 403, 406 (8th Cir. 1996). Because the statute defines the term "aggravated felony" to include Roldan-Castillo's prior conviction, the district court did not make any factual findings that could give rise to a Sixth Amendment claim. Though there was no Sixth Amendment violation, the district court committed Booker error by treating the guidelines as mandatory. As Roldan-Castillo preserved the issue with a Blakely objection to the district court, we must also consider whether it was “harmless error to sentence [him] under a mandatory guidelines regime, as opposed to the Bookeradvisory system.” United States v. Haidley , 400 F.3d 642, 644 (8th Cir. 2005). We conclude the error was harmless. At sentencing, both defense counsel and counsel for the government urged the district court to impose a sentence at the bottom of the appropriate guidelines range of fifteen to twenty one months.-3- The court instead imposed a sentence in the middle of the range, eighteen months, explaining, “I don’t believe a sentence at the low end . . . is in the best interest of justice.” This removes any “grave doubt” that the Booker error “substantially influenced the outcome of the proceedings.” Haidley , 400 F.3d at 645. The judgment of the district court is affirmed.

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