1 The Honorable John R. Tunheim, United St ates District Judge for the District of Minnesota. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

________________ No. 06-1080

________________ 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.

________________ Submitted: September 26, 2006 Filed: October 24, 2006

________________ Before MURPHY, HANSEN and RILEY, Circuit Judges.

________________ HANSEN, Circuit Judge.

Rodolfo Lopez-Zepeda appeals a 46- month sentence imposed upon him by the district court 1 after he pleaded guilty to one count of illegal reentry by a removed alien. See 8 U.S.C. § 1326(a), (b)(2) (2000). Lop ez-Zepeda argues that the district court erred by including a 16-le vel enhancement in his advi sory Guidelines sentence after determining that his previous stat e-court conviction constituted "a crime of violence." See U.S. Sentencing Guidelines Ma nual (USSG) § 2L1.2(b)(1)(A)(ii)-2- (2005). He also argues that the enhancedmaximum 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 subs equently 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 L opez-Zepeda with illegal reentry after deportation subsequent to his removal for th e conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Lopez-Zepeda en tered into a plea agreement with the Government, admitting his illegal reentry but disputing the applicability of a 16-level sentencing enhan cement in the Guidelines calculation for having committed a prior "crime of violen ce," USSG § 2L1.2(b)(1)(A)(ii). The plea agreement recognized that § 1326(b)(2) pres cribed the maximum available sentence of 20 years. Defense counsel preserve d 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 in crease the applicable maximum sentence. Defense counsel ac knowledged, 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 th at a 16-level enhancement on the ground that his prior offense was "a crime of vi olence" was not warrant ed because his prior crime lacked the requisite el ement of force. Specifically , he argued that his testimony during the state court plea hearing concerning the use of force was ambiguous and-3- 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 co lloquy. 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 inthe plea transcript Lopez-Zepeda admitted to participating with another in forcing the victim to have se x, despite a few contrary statements as well. (SeeSent. Tr. at 19) ("There are admissions to forcing her to have sex. There . . . is surely language that goe s the other way as well . . . ."). Given the entire record, the district court found thatthe 2001 Minnesota convi ction 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 Guid elines 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 hi s 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 defi ne "a crime of violence" as including, among other things, "forcible sex offenses . . . or any offense unde r federal, state, or local law that has as an elem ent 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 a2 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).

-4- categorical approach. Unite d 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 char ging document or plea agreement as well as a transcript in which the defendant confirme d the factual basis for his plea in order to determine whether the prio r conviction was for a crime of violence. Id. (citing Shepard v. United States , 544 U.S. 13, 21, 26 (2005), a nd 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 se xual 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. SeeState v. Leake , 699 N.W.2d 312, 323-24 (Minn.) (holding third-de gree criminal sexual conduct can be accomplished "by coercion alone, force al one, 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" 2fall within the Guidelines definition of "a crime of violence," and also, the actual f acts stated in the state court plea colloquy support the district court's finding that for ce was an element of the prior offense.-5- We find it unnecessary to determine t oday whether Minneso ta's definition of "coercion" meets the Guideline's definiti on of "a crime of violence" because the district court's decision in this case rest ed 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 stat es 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 statedthat when she tried to l eave, Hernandez grabbed her by the neck and forced her into a bedroom where the two men forcibly removed her clothes and had sexual interc ourse 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 in to 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 apartmen t, that Lopez-Zepeda took off the victim's clothes, that he had sexual intercourse with her after sh e had said no, and that he continued having intercourse with her agains t her will. Lopez-Ze peda 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 ha ll. Specifically, Lopez-Zepeda was asked, "[A]fter she said no, you forced her to ha ve sex, is that co rrect?" and through an interpreter he answered, "Y es." (Appellant's Add. atB-15.) When questioned concerning his tape-recorded st atement, Lopez-Zepeda answer ed that he had told the police officer the truth. He admitted in that recorded stat ement that he and Hernandez had used force to get the vi ctim to engage in intercour se. Later in the plea colloquy, Lopez-Zepeda backpedaled a b it, 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.)-6- 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 enhancemen t 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 ri ghts, although he acknowledged at sentencing that the argument was foreclosed by Supr eme 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 reject ed this type of claim on the basis of Supreme Court precedent, and we do so again today. SeeApprendi 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 indict ment). "While a finding that the prior felony conviction qualifies as 'aggravated' is a factthat can increase the defendant's sentence beyond the initially prescribed maximum se ntence, the plain language of Apprendiexcepts 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 convicti on is to be treated differently from the fact-7- 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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