United States v. Cesar Abundis , 5 F. App'x 563 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3580
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Cesar Abundis-Quesadas, also known * District Court of Nebraska.
as Isidro Martinez-Luna, also known as *
Isidro L. Martinez, also known as * [UNPUBLISHED]
Isidro Luna Martinez, also known as *
Cesar Abundis, also known as Cesar *
Abundis-Quesea, also known as Cesar *
Abondis, also known as Cesar Quezea, *
also known as Cesar Abundis-Casada, *
also known as Cesar Abundis-Quesada, *
*
Appellant. *
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Submitted: February 6, 2001
Filed: March 6, 2001
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Cesar Abundis-Quesadas 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
section 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 77 months imprisonment and 2 years supervised release.
Abundis-Quesadas argues on appeal, as he did below, that the fact of his prior
aggravated-felony conviction had to be charged in the indictment and proven beyond
a reasonable doubt because Almendarez-Torres v. United States, 523 U.S. 224 (1998),
is no longer good law in light of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). We
reject this argument because the Apprendi Court declined to overrule Almendarez-
Torres, id. at 2362, and we have previously declined to read Apprendi as disturbing the
holding of Almendarez-Torres, see United States v. Rush, Nos. 00-2557/2765, 2001
WL 43523, at *2 (8th Cir. Jan. 19, 2001) (per curiam) (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, although [it] expressed a
willingness to reconsider it.”), cert. denied, 121 S. Ct. 600 (2000).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.
-2-