United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-3468

___________

United States of America, *

*

Appellee, * Appeal from United States

* District Court for the Eastern

v. * District of Arkansas.

*

Martin Espinoza-Naranjo, also known * [UNPUBLISHED]

as George Gonzales, also known as *

George Gonzalez, *

*

Appellant. *

___________

Submitted: May 18, 2006

Filed: May 26, 2006

___________

Before MURPHY, BEAM, and BENTON, Circuit Judges.

___________

PER CURIAM.

Appellant Espinoza-Naranjo pleaded guilty to illegal re-entry into the United

States after deportation in violation of 8 U.S.C. § 1326(b)(2). The indictment alleged

that this offense occurred subsequent to an aggravated felony conviction– possession

of cocaine for sale–as described by 8 U.S.C. § 1101(a)(43)(B). The presentence

investigation report (PSR) prepared by the United States probation officer calculated

a sixteen-level increase to the base offense level of eight based upon the prior felony

conviction. The suggested guideline sentence in the PSR was seventy-seven to

ninety-six months. Appellant objected to the suggested sixteen-level increase prior
1

The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas.

-2-

to sentencing. The district court1

 adopted the recommendation set forth in the PSR,

gave Appellant credit for time served in state prison, and imposed a forty-two month

sentence of imprisonment. 

Citing Shepard, Booker, Blakely, and Apprendi, Appellant argues that the

district court made findings of fact by a preponderance of the evidence when it

enhanced Appellant's sentence based upon his alleged criminal history and that such

factfinding violated his Sixth Amendment right to be judged by a jury of his peers,

as well as his due process rights under the Fifth Amendment. Shepard v. United

States, 544 U.S. 13 (2005); United States v. Booker, 543 U.S. 220 (2005); Blakely

v. Washington, 542 U.S. 296 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000).

We are bound by our precedent in United States v. Cerna-Salguero, 399 F.3d

887 (8th Cir.), cert. denied, 125 S. Ct. 2936 (2005), which clearly recognizes the

Supreme Court's rejection of Appellant's arguments. "'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.'" Id. (quoting Apprendi 530 U.S. at 489-90). And, contrary to Appellant's

argument, the Supreme Court has not overruled Apprendi nor Almendarez-Torres v.

United States, 523 U.S. 224 (1998). 

Finally, Appellant's guilty plea to a section 1326(b)(2) offense precludes his

arguments because pleading guilty to a violation of section 1326(b)(2) is tantamount

to admitting that his removal was preceded by a conviction of an aggravated felony.

"[I]n the case of any alien described in such subsection whose removal was

subsequent to a conviction for commission of an aggravated felony, such alien shall
-3-

be fined under such Title, imprisoned not more than 20 years, or both." 8 U.S.C. §

1326(b)(2) . 

We thus reject Appellant's constitutional challenges to his sentence, and affirm.

______________________________