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The Honorable John R. Tunheim, United States District Judge for the District

of Minnesota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1080

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United States of America,

Appellee,

v.

Rodolfo Lopez-Zepeda,

Appellant.

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Appeal from the United States

District Court for the

District of Minnesota.

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Submitted: September 26, 2006

 Filed: October 24, 2006

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Before MURPHY, HANSEN and RILEY, Circuit Judges. 

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HANSEN, Circuit Judge.

Rodolfo Lopez-Zepeda appeals a 46-month sentence imposed upon him by the

district court1

 after he pleaded guilty to one count of illegal reentry by a removed

alien. See 8 U.S.C. § 1326(a), (b)(2) (2000). Lopez-Zepeda argues that the district

court erred by including a 16-level enhancement in his advisory Guidelines sentence

after determining that his previous state-court conviction constituted "a crime of

violence." See U.S. Sentencing Guidelines Manual (USSG) § 2L1.2(b)(1)(A)(ii)
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(2005). He also argues that the enhanced maximum penalty provision of § 1326(b)(2)

is unconstitutional. We affirm. 

I. 

In 2001, Lopez-Zepeda pleaded guilty in Minnesota state court to one count of

third-degree criminal sexual conduct. See Minn. Stat. § 609.344(1)(c) (2000)

(defining the crime as engaging in sexual penetration with another person and using

"force or coercion to accomplish the penetration"). He was subsequently deported to

Mexico on February 2, 2004. Lopez-Zepeda illegally returned to the United States

and was found residing in Minnesota in November 2004. 

A one-count federal indictment charged Lopez-Zepeda with illegal reentry after

deportation subsequent to his removal for the conviction of an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2). Lopez-Zepeda entered into a plea

agreement with the Government, admitting his illegal reentry but disputing the

applicability of a 16-level sentencing enhancement in the Guidelines calculation for

having committed a prior "crime of violence," USSG § 2L1.2(b)(1)(A)(ii). The plea

agreement recognized that § 1326(b)(2) prescribed the maximum available sentence

of 20 years. Defense counsel preserved a constitutional challenge to the penalty

statute, asserting that the increased 20-year maximum penalty violates the Sixth

Amendment right to a jury determination of all facts that increase the applicable

maximum sentence. Defense counsel acknowledged, however, that the Supreme

Court has already ruled that § 1326(b)(2) is constitutional. See Almendarez-Torres

v. United States, 523 U.S. 224, 226-27 (1998).

At sentencing, Lopez-Zepeda argued that a 16-level enhancement on the ground

that his prior offense was "a crime of violence" was not warranted because his prior

crime lacked the requisite element of force. Specifically, he argued that his testimony

during the state court plea hearing concerning the use of force was ambiguous and
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therefore does not provide a factual basis to support the enhancement. The district

court considered the state court conviction and the statutory definition of the crime,

as well as the complaint and the plea colloquy. The court found that Lopez-Zepeda

plainly admitted to forcing the victim to have sexual intercourse with him against her

will. As to possible ambiguities in the testimony asserted by defense counsel, the

district court noted that time and again in the plea transcript Lopez-Zepeda admitted

to participating with another in forcing the victim to have sex, despite a few contrary

statements as well. (See Sent. Tr. at 19) ("There are admissions to forcing her to have

sex. There . . . is surely language that goes the other way as well . . . ."). Given the

entire record, the district court found that the 2001 Minnesota conviction was "a crime

of violence" within the meaning of USSG § 2L1.2(b)(1)(A)(ii), and accordingly

added the 16-level enhancement into the Guidelines calculation. The district court

imposed a 46-month Guidelines sentence at the bottom of the advisory range. LopezZepeda appeals. 

II.

We apply de novo review when considering the district court's interpretation

and application of the Sentencing Guidelines, and we review its fact-findings for clear

error. United States v. Urbina-Mejia, 450 F.3d 838, 839 (8th Cir. 2006). LopezZepeda first challenges the district court's determination of his advisory Guidelines

sentence, asserting that the court erred in imposing the 16-level increase to his base

offense level for a prior conviction of "a crime of violence." USSG

§ 2L1.2(b)(1)(A)(ii). The Guidelines define "a crime of violence" as including,

among other things, "forcible sex offenses . . . or any offense under federal, state, or

local law that has as an element the use, attempted use, or threatened use of physical

force against the person of another." USSG § 2L1.2, comment. (n.1(B)(iii)). 

To determine whether a defendant's prior conviction was for "a crime of

violence" within the meaning of USSG § 2L1.2(b)(1)(A)(ii), we generally employ a
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The Minnesota Statutes define "coercion" as meaning:

words or circumstances that cause the complainant reasonably to fear

that the actor will inflict bodily harm upon, or hold in confinement, the

complainant or another, or force the complainant to submit to sexual

penetration or contact, but proof of coercion does not require proof of a

specific act or threat.

Minn. Stat. § 609.341(14). 

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categorical approach. United States v. Vasquez-Garcia, 449 F.3d 870, 872 (8th Cir.

2006). Under this approach, the district court may consider the fact of conviction and

the statutory definition of the prior offense. Id. If the statute criminalizes both

conduct that would qualify as a crime of violence and conduct that would not, the

court may consider the terms of the charging document or plea agreement as well as

a transcript in which the defendant confirmed the factual basis for his plea in order to

determine whether the prior conviction was for a crime of violence. Id. (citing

Shepard v. United States, 544 U.S. 13, 21, 26 (2005), and Taylor v. United States, 495

U.S. 575, 602 (1990)).

Lopez-Zepeda argues that the Minnesota statute defines third-degree criminal

sexual conduct as engaging in sexual penetration "by force or coercion," Minn. Stat.

§ 609.344(1)(c) (emphasis added), and thus, he argues that it is unclear whether the

element of force was necessary to his conviction. See State v. Leake, 699 N.W.2d

312, 323-24 (Minn.) (holding third-degree criminal sexual conduct can be

accomplished "by coercion alone, force alone, or both force and coercion"), cert.

denied, 126 S. Ct. 745 (2005). The Government counters that Lopez-Zepeda's prior

conviction is a crime of violence under the Guidelines because both the use of force

and Minnesota's definition of "coercion"2

 fall within the Guidelines definition of "a

crime of violence," and also, the actual facts stated in the state court plea colloquy

support the district court's finding that force was an element of the prior offense. 
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We find it unnecessary to determine today whether Minnesota's definition of

"coercion" meets the Guideline's definition of "a crime of violence" because the

district court's decision in this case rested on the finding that the charging documents

and the plea colloquy demonstrate factually that Lopez-Zepeda committed the prior

crime by force. The charging document states that the victim, a 16-year-old girl,

reported drinking beer in an apartment with Lopez-Zepeda and a man named Juan

Jose Hernandez. She stated that when she tried to leave, Hernandez grabbed her by

the neck and forced her into a bedroom where the two men forcibly removed her

clothes and had sexual intercourse with her against her will multiple times. She said

that Hernandez threatened to kill her if she told anyone, that Hernandez dragged her

by the hair, and that she finally escaped into the hall of the apartment building and

began pounding on doors for help. 

The transcript of Lopez-Zepeda's guilty plea in state court confirms that the

three were drinking together in an apartment, that Lopez-Zepeda took off the victim's

clothes, that he had sexual intercourse with her after she had said no, and that he

continued having intercourse with her against her will. Lopez-Zepeda testified that

Hernandez raped her too and that Hernandez then dragged her to the bathroom by the

hair, and she ran out, escaping into the hall. Specifically, Lopez-Zepeda was asked,

"[A]fter she said no, you forced her to have sex, is that correct?" and through an

interpreter he answered, "Yes." (Appellant's Add. at B-15.) When questioned

concerning his tape-recorded statement, Lopez-Zepeda answered that he had told the

police officer the truth. He admitted in that recorded statement that he and Hernandez

had used force to get the victim to engage in intercourse. Later in the plea colloquy,

Lopez-Zepeda backpedaled a bit, stating that Hernandez had thrown her onto the bed,

held her hands down, and made threats to her, but that he (Lopez-Zepeda) had not

used force. (Id. at 18.) However, when again specifically asked, "And you

understand that by pleading guilty today you're admitting that you acted with Mr.

Hernandez to force her to have sex?" he answered through an interpreter, "Yes." (Id.

at 19.) 
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Based on this record, the district court did not clearly err in finding that LopezZepeda's prior state-court conviction was "a crime of violence" under the Guidelines

because the offense involved both the use and threatened use of physical force.

Accordingly, the 16-level enhancement of USSG § 2L1.2(b)(1)(A)(ii) was

appropriately applied to the calculation of his advisory Guidelines sentencing range.

Lopez-Zepeda also argues that the enhanced 20-year maximum sentence of

8 U.S.C. § 1326(b)(2), imposed on the basis of his prior conviction for an aggravated

felony, violates his Sixth Amendment rights, although he acknowledged at sentencing

that the argument was foreclosed by Supreme Court precedent. He nevertheless

asserts on appeal that the statute unconstitutionally required the district court to

engage in fact-finding in order to determine whether his prior conviction qualified as

an aggravated felony under § 1326(b)(2). We apply de novo review to constitutional

questions. United States v. Clemmons, 461 F.3d 1057, 1061 (8th Cir. 2006). 

We have repeatedly rejected this type of claim on the basis of Supreme Court

precedent, and we do so again today. See Apprendi v. New Jersey, 530 U.S. 466, 490

(2000) ("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.") (emphasis added); Almendarez-Torres, 523 U.S.

at 226-27 (holding that § 1326(b)(2) is a sentencing factor and not a separate criminal

offense that must be set forth in the indictment). "While a finding that the prior felony

conviction qualifies as 'aggravated' is a fact that can increase the defendant's sentence

beyond the initially prescribed maximum sentence, the plain language of Apprendi

excepts the fact of prior convictions from its holding." United States v. KempisBonola, 287 F.3d 699, 702 (8th Cir.), cert. denied, 537 U.S. 914 (2002). See, e.g.,

United States v. Carrillo-Beltran, 424 F.3d 845, 848 (8th Cir. 2005), cert. denied, 126

S. Ct. 1384 (2006); United States v. Marcussen, 403 F.3d 982, 984 (8th Cir.), cert.

denied, 126 S. Ct. 457 (2005). Additionally, we have previously "rejected the

argument that the nature of a prior conviction is to be treated differently from the fact
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of a prior conviction." Marcussen, 403 F.3d at 984. For these reasons, LopezZepeda's Sixth Amendment challenge to § 1326(b)(2) fails. 

III. 

Accordingly, we affirm the judgment of the district court. 

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