United States v. Luis Ramirez-Gil , 6 F. App'x 518 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3532
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Luis Santiago Ramirez-Gil, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 20, 2001
Filed: March 30, 2001
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Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
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PER CURIAM.
Luis Santiago Ramirez-Gil pleaded guilty to illegally re-entering the United
States after deportation, in violation of 8 U.S.C. § 1326(a). His sentence was enhanced
under 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(A) because he had previously
been deported after being convicted of an aggravated felony. The District Court1
sentenced him to 46 months imprisonment and 3 years supervised release.
1
The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.
Ramirez-Gil argues that Apprendi v. New Jersey, 120 S. Ct. 2348 (2000),
required the government to charge the fact of his prior aggravated-felony conviction in
the indictment. Apprendi, Ramirez-Gil argues, overruled Almendarez-Torres v. United
States, 523 U.S. 224 (1998), which had held that an earlier aggravated-felony
conviction is a sentencing factor under 8 U.S.C. § 1326(b) that need not be charged as
an element of the offense. Apprendi, however, held that "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 the jury and proved beyond a reasonable
doubt." 120 S. Ct. at 2362-63 (emphasis added). The Apprendi Court also explicitly
declined to overrule Almendarez-Torres. Id. at 2362. Likewise, we decline to read
Apprendi as disturbing the holding of Almendarez-Torres. See United States v. Rush,
240 F.3d 729, 731 (8th Cir. 2001) (noting that Apprendi does not apply to fact of prior
conviction); United States v. Aguayo-Delgado, 220 F.3d 926, 932 n.4 (8th Cir.) (“In
Apprendi, the Court left Almendarez-Torres untouched"), cert. denied, 121 S. Ct. 600(2000)).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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