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The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3177

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Juan Carrillo-Beltran, *

* 

Appellant. *

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Submitted: June 20, 2005

Filed: September 29, 2005

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Before RILEY, BOWMAN, and BENTON, Circuit Judges.

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RILEY, Circuit Judge.

Juan Carrillo-Beltran (Carrillo-Beltran) pled guilty to possession with intent

to distribute more than one kilogram of heroin, in violation of 21 U.S.C. § 841(a)(1).

The district court1

 sentenced Carrillo-Beltran to 120 months’ imprisonment and 5

years’ supervised release. Carrillo-Beltran appeals, arguing the district court erred

in finding Carrillo-Beltran had a prior drug conviction, in violation of Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We affirm.
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Miranda v. Arizona, 384 U.S. 436 (1966). 

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I. BACKGROUND

Carrillo-Beltran was arrested after a consent search of his vehicle uncovered

1.61 kilograms of heroin hidden inside the passenger-side airbag compartment. Upon

arrest, and after waiving his Miranda2

 rights, Carrillo-Beltran indicated he wanted to

cooperate fully with the arresting agents. Carrillo-Beltran later signed a plea

agreement in which he admitted these facts.

Carrillo-Beltran later pled guilty to possession with intent to distribute over one

kilogram of heroin, in violation of 21 U.S.C. § 841(a)(1). Although Carrillo-Beltran

and the government agreed Carrillo-Beltran’s estimated total offense level under the

United States Sentencing Guidelines (Guidelines) would be 25, Carrillo-Beltran

admitted he “fully underst[ood] that . . . the crime to which [he pled] guilty” required

a mandatory term of imprisonment of at least 10 years. Carrillo-Beltran and the

government agreed Carrillo-Beltran’s criminal history would be decided by the

district court after review of the Pre-Sentence Investigation Report (PSR).

Furthermore, the parties mutually agreed to waive all rights to appeal, with the

exception of any upward or downward departure from the Guidelines range not

agreed to in the plea agreement. 

Under 21 U.S.C. § 841(b)(1)(A), a criminal who possesses over one kilogram

of heroin with intent to distribute “shall be sentenced to a term of imprisonment

which may not be less than 10 years or more than life.” Carrillo-Beltran’s only hope

for a prison sentence less than 10 years (120 months) was to qualify for the safety

valve provision set forth at 18 U.S.C. § 3553(f). The safety valve provision mandates

that the court sentence a defendant in accordance with the Guidelines without regard

to any statutory minimum sentence, if the court finds the defendant meets five

statutory requirements. See 18 U.S.C. § 3553(f). The first of the five requirements

is “the defendant does not have more than 1 criminal history point, as determined
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under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1). Thus, if Carrillo-Beltran

had more than one criminal history point, the district court could not apply section

3553(f)(1), and Carrillo-Beltran’s presumptive sentence would be a minimum of 120

months, rather than the 46- to 57-month range he argues was his presumptive

sentence pursuant to the Guidelines and section 3553(f).

The PSR showed Carrillo-Beltran, under the alias “Francisco Espiritu Atrisco”

(Atrisco), had a prior conviction for possession, sale, and transportation of a

controlled substance. Carrillo-Beltran objected to the PSR’s inclusion of the prior

conviction under the name Atrisco, arguing the court could not determine Atrisco and

he are the same person without violating Carrillo-Beltran’s Sixth Amendment rights.

At the sentencing hearing on September 2, 2004, the government and Carrillo-Beltran

stipulated that an examiner’s comparison of a fingerprint card for Carrillo-Beltran to

a fingerprint card for Atrisco led the examiner to conclude both sets of fingerprints

were made by the same person. Finding Carrillo-Beltran and Atrisco were the same

person, the district court attributed the prior conviction to Carrillo-Beltran. Because

Carrillo-Beltran did not qualify for the safety valve provision, the district court

sentenced him to 120 months’ imprisonment and five years’ supervised release.

Carrillo-Beltran appeals, arguing the district court’s finding violates Blakely, because

the court was required to submit to a jury whether Carrillo-Beltran was the same

person as the defendant in the prior conviction.

II. DISCUSSION

“Decisions regarding offenses counted in a criminal history calculation are

factual determinations subject to clear-error review.” United States v. Townsend, 408

F.3d 1020, 1022 (8th Cir. 2005) (citing United States v. Paden, 330 F.3d 1066, 1067

(8th Cir. 2003)).

Ample authority supports the district court’s finding that the prior conviction

was attributable to Carrillo-Beltran. In Almendarez-Torres v. United States, 523 U.S.
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224, 235, 239-47 (1998), the Supreme Court ruled a prior felony conviction is a

sentencing factor for the court, not a fact issue for the jury. See also United States v.

Wilson, 406 F.3d 1074, 1075 (8th Cir. 2005). Following its decision in AlmendarezTorres, the Court has reaffirmed this principle on numerous occasions. See Apprendi

v. New Jersey, 530 U.S. 466, 489 (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.”); see

also United States v. Booker, 125 S. Ct. 738, 748, 756 (2005) (reaffirming the

Apprendi principle that the fact of a prior conviction need not be determined by the

jury); Blakely, 542 U.S. at ___, 124 S. Ct. at 2536 (same). The Supreme Court has

not overruled its decisions in Almendarez-Torres and Apprendi, and the Court’s

recent sentencing cases, including Shepard v. United States, 125 S. Ct. 1254 (2005),

have not abandoned the rule that a court–and not a jury–may consider prior criminal

history in sentencing a defendant. See United States v. Mattix, 404 F.3d 1037, 1038

(8th Cir. 2005) (per curiam). Thus, it is well settled at this time that a district court

may determine the fact of a prior conviction.

In this case, the only “twist” on the well-settled principles of Booker, Blakely,

Apprendi, and Almendarez-Torres is Carrillo-Beltran argues the prior conviction

included in the PSR was attributable to Atrisco, and therefore was not a “fact” exempt

from a reasonable doubt determination by a jury. His contention is unsupported by

the law. 

While determining whether a prior conviction under an alias is attributable to

a defendant seemingly involves a finding of fact beyond the “fact of a prior

conviction” (which clearly is allowed under Supreme Court precedent), such an

additional finding is “intimately related” to the prior conviction and does not violate

the Sixth Amendment. See United States v. Moore, 401 F.3d 1220, 1225 (10th Cir.

2005) (quoting United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004)). “To the

extent that [Carrillo-Beltran] claims that the determination[] at issue require[s] the
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finding of facts beyond the mere fact of a prior conviction, the same result obtains.”

Wilson, 406 F.3d at 1075. As we stated in United States v. Marcussen, 403 F.3d 982

(8th Cir. 2005), “we previously have rejected the argument that the nature of a prior

conviction is to be treated differently from the fact of a prior conviction.” Id. at 984

(citing United States v. Kempis-Bonola, 287 F.3d 699, 703 (8th Cir. 2002), and

United States v. Davis, 260 F.3d 965, 969 (8th Cir. 2001)). 

Carrillo-Beltran did not specifically object to the PSR’s characterization of the

facts and conclusion that Carrillo-Beltran was the same person as Atrisco. CarrilloBeltran stipulated to the fingerprint examiner’s conclusion the two sets of fingerprints

“were made by the same person.” His only objection was to the fact his name was not

used in the prior conviction, thus requiring a factual finding that he was the same

person as Atrisco. This convoluted objection to the PSR has the ring of an admission.

United States v. Thorn, 413 F.3d 820, 823 (8th Cir. 2005) (“Facts presented in a PSR

are deemed admitted by a defendant unless the defendant objects to the inclusion of

those facts.”) (citations omitted). “Sentencing courts do not violate the Sixth

Amendment when they rely on facts admitted by a defendant in calculating the

defendant’s sentence.” Id. (citing Booker, 125 S. Ct. at 756).

To allow a defendant to obtain a jury trial on whether a prior conviction under

an alias is attributable to the defendant (after the defendant has stipulated to a

fingerprint match for the alias and the defendant) offends traditional notions of

justice. A court must be allowed to determine not only the “fact of a prior

conviction” but also those facts so “intimately related” to the prior conviction to fall

within the Apprendi exception. See Moore, 401 F.3d at 1225. The determination at

sentencing whether the defendant has prior convictions–even under aliases–falls

within this principle. Therefore, the district court’s finding that Carrillo-Beltran had

a prior conviction under an alias was not clearly erroneous and does not violate the

Sixth Amendment.
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III. CONCLUSION

Under 18 U.S.C. § 841(b)(1)(A), Carrillo-Beltran’s presumptive sentencing

range was a mandatory minimum of 120 months, unless he was eligible for the safety

valve provision under 18 U.S.C. § 3553(f)(1). Carrillo-Beltran could not take

advantage of the safety valve if he had “more than 1 criminal history point.” 18

U.S.C. § 3553(f)(1). Because the district court did not err in finding Carrillo-Beltran

had a prior conviction under an alias, Carrillo-Beltran was not entitled to safety valve

relief. Thus, the district court did not err in sentencing Carrillo-Beltran. 

For the foregoing reasons, we affirm Carrillo-Beltran’s conviction and

sentence.

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