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

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3733

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Juan Roldan-Castillo, * [UNPUBLISHED]

*

Appellant. *

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Submitted: May 10, 2005

Filed: June 6, 2005

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

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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 court1

 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
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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 in

18 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 Booker advisory 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.
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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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