United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3844

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United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

Edgardo Torres-Alvarado, * 

* 

Appellant. *

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Submitted: May 9, 2005

Filed: August 5, 2005

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

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SMITH, Circuit Judge.

In this criminal appeal, Edgardo Torres-Alvarado ("Torres-Alvarado") argues

that he was sentenced in violation of the Sixth Amendment because the judge, not the

jury, found beyond a reasonable doubt that his prior drug conviction was an

aggravated felony or drug trafficking offense. We disagree and affirm.
1

The Honorable Robert T. Dawson, United States District Judge for the

Western District of Arkansas.

2

In his brief, Torres-Alvarado argues that he erroneously received a 12-point

enhancement for an aggravated felony under § 2L1.2(b)(1)(A). The Presentence

Investigation Report recommended a 12-point enhancement for a felony drug

trafficking offense under § 2L1.2(b)(1)(B). Section 2L1.2(b)(1)(A) does not provide

an enhancement based on an aggravated felony conviction; § 2L1.2(b)(1)(C) does,

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I. Background

Torres-Alvarado was indicted and charged in the United States District Court

for the Western District of Arkansas, Fort Smith Division,1

 with illegal re-entry into

the United States after deportation for an aggravated felony in violation of 8 U.S.C.

§§ 1326(a) & (b)(2). Specifically, the one-count indictment charged that:

On or about the 15th day of March, 2004, in the Western District of

Arkansas, Fort Smith Division, the defendant, EDGARDO TORRESALVARADO, a/k/a/ Edgardo Alvarado, an alien who had previously

been convicted of Possession for Sale of Cocaine Base, in the Superior

Court of California, in and for the County of Los Angeles, an aggravated

felony, and thereafter was arrested and deported from the United States

pursuant to law, knowingly and unlawfully was found in the United

States in the Western District of Arkansas, Fort Smith Division, the said

defendant having not obtained the consent of the Attorney General of

the United States or his successor, pursuant to 6 U.S.C. §§ 202(3) and

(40) and [6 U.S.C. §] 557, for reapplication by the defendant for

admission into the United States, in violation of Title 8 U.S.C. §§

1326(a) and (b)(2).

Torres-Alvarado pled guilty to the allegations contained in the one-count indictment.

At sentencing, the government sought an increase in offense level based on U.S.S.G.

§ 2L1.2(b)(1)(B), which allows a 12-point enhancement "[i]f the defendant previously

was deported, or unlawfully remained in the United States, after . . . a conviction for

a felony drug trafficking offense."2

 Torres-Alvarado objected to the enhancement and
but that enhancement is only 8 points.

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argued that the prior felony conviction for possession of cocaine base that was

contained in the indictment was not admitted or proved to a jury beyond a reasonable

doubt. The district court overruled the objection and sentenced Torres-Alvarado to

37 months' imprisonment.

II. Discussion

Torres-Alvarado argues on appeal, as he did in the district court, that because

of Blakely v. Washington, 542 U.S. 296 (2004), the jury, not the judge, should have

determined whether his prior felony conviction was a drug trafficking offense or an

aggravated felony. When Torres-Alvarado was sentenced, the United States Supreme

Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), was pending and

it was unclear whether and to what extent Blakely would apply to the United States

Sentencing Guidelines. The applicability of Blakely to the Guidelines is now no

longer in question. In Booker, the Supreme Court instructed that under the Federal

Sentencing Guidelines, "[a]ny fact (other than a prior conviction) which is necessary

to support a sentence exceeding the maximum authorized by the facts established by

a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt." Id. at 756. The Court invalidated the Guidelines under

the Sixth Amendment to the extent that they were applied in a mandatory manner. Id.

at 764. While district courts are no longer bound to their strictures, the Guidelines

must be consulted and taken into account at sentencing. Id. at 767. Booker also

reaffirmed the exception in Almendarez-Torres v. United States, 523 U.S. 224 (1998),

and Apprendi v. New Jersey, 530 U.S. 466 (2000), for prior convictions. Booker, 125

S. Ct. at 756. See also Shepard v. United States, 125 S. Ct. 1254, 1262 (2005). 

Torres-Alvarado maintains that he neither admitted that his prior felony

conviction was an aggravated felony or a drug trafficking offense, nor did the

government prove these facts to a jury beyond a reasonable doubt. The government
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responds that by pleading guilty to the charges contained in the indictment, TorresAlvarado admitted that his prior felony conviction was aggravated or a drug

trafficking offense. We hold that even if Torres-Alvarado did not make such an

admission, his appeal is without merit. 

"For purposes of . . . [U.S.S.G. § 2L1.2], 'aggravated felony' has the meaning

given that term in section 101(a)(43) of the Immigration and Nationality Act (8

U.S.C. § 1101(a)(43)), without regard to the date of conviction for the aggravated

felony." U.S.S.G. § 2L1.2 cmt. n.3(A). Section 1101(a)(43) of Title 8 includes in its

definition of aggravated felony any "illicit trafficking in a controlled substance (as

defined in section 802 of Title 21), including a drug trafficking crime (as defined in

section 924©) of Title 18) . . . whether in violation of Federal or State law." Section

924(c)(2) of Title 18 "defines a drug trafficking crime as including 'any felony

punishable under the Controlled Substances Act.'" United States v. Haggerty, 85 F.3d

403, 406 (8th Cir. 1996); see also 21 U.S.C. § 801. Thus, Torres-Alvarado's prior

felony conviction "is an aggravated felony if (1) it is punishable under the Controlled

Substances Act, and (2) it is a felony." Haggerty, 85 F.3d at 406. It is undisputed that

Torres-Alvarado's prior conviction for possession for sale of cocaine base is a felony

that is punishable under the Controlled Substances Act. Because the statute defines

aggravated felony to include Torres-Alvarado's prior felony conviction, the district

court did not make any factual findings in determining that Torres-Alvarado's prior

felony conviction was aggravated.

For purposes of U.S.S.G. § 2L1.2, "'[d]rug trafficking offense' means an

offense under federal, state, or local law that prohibits the manufacture, import,

export, distribution, or dispensing of a controlled substance (or counterfeit substance)

or the possession of a controlled substance (or a counterfeit substance) with intent to

manufacture, import, export, distribute, or dispense." U.S.S.G. § 2L1.2 cmt.

n.1(B)(iv). Because this statute defines drug trafficking offense to also include
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Torres-Alvarado's prior felony conviction, the district court also did not make any

factual finding in determining that Torres-Alvarado's prior felony conviction was a

drug trafficking offense. While it is unclear whether Almendarez-Torres and its

felony exception will remain good law, see Shepard, 125 S. Ct. at 1264 (Thomas J.

concurring) ("a majority of the Court now recognizes that Almendarez-Torres was

wrongly decided"), we are bound by Almendarez-Torres until the Supreme Court

explicitly overrules it.

III. Conclusion

The district court did not violate the Sixth Amendment in determining that

Torres-Alvarado's prior conviction was either an aggravated felony or a drug

trafficking offense. Torres-Alvarado's sentence is affirmed.

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