Lawrence E. Lupien v. Harold W. Clarke

*
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3474
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Wilton Antonio Cerna-Salguero, *
also known as Juan Antonio Reyes, * [PUBLISHED]
*
Appellant. *
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Submitted: January 18, 2005
Filed: March 3, 2005 (Corrected: 3/4/05)
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Before MORRIS SHEPPARD ARNOLD, FAGG, and GRUENDER, Circuit Judges.
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PER CURIAM.
Wilton Antonio Cerna-Salguero pleaded guilty to one count of being an illegal
alien found in the United States following deportation in violation of 8 U.S.C.
§ 1326(a). The district court * increased Cerna-Salguero’s sentence under 8 U.S.C.
§ 1326(b)(2), which provides a maximum sentence of twenty years if the alien had
an earlier aggravated felony conviction.

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Cerna-Salguero appeals arguing § 1326(b)(2) is a separate crime and thus he
has a Sixth Amendment right to a jury trial for violating and being sentenced under
the statute. Cerna-Salguero acknowledges the Supreme Court rejected this argument
in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and declined to revisit
Almendarez-Torres in Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000), which
held, “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.” Cerna-Salguero also acknowledges we have
continued to follow Almendarez-Torres after Apprendi. United States v. Perez-Perez,
337 F.3d 990, 997 (8 th Cir. 2003) (stating plain language of Apprendi excepts the fact
of earlier convictions from its holding, and thus § 1326(b)(2) does not violate the
Sixth Amendment); United States v. Alvarez, 320 F.3d 765, 767 (8 th Cir. 2002)
(stating we must follow Almendarez-Torres until overruled by the Supreme Court);
United States v. Kempis-Bonola, 287 F.3d 699, 702 (8 th Cir. 2002) (having refused
to revisit Almendarez-Torres in Apprendi, “the legal landscape is clear: Almendarez-
Torres has not been overruled”). Cerna-Salguero candidly acknowledges in his brief
that his claim has been rejected by the Supreme Court and “unless pending
[guidelines] cases change the law” his appeal fails. The Supreme Court has now
decided these cases, and in so doing the Court did not overrule Almendarez-Torres.
See United States v. Booker, 125 S. Ct. 738, 756 (2005).
We thus reject Cerna-Salguero’s Sixth Amendment challenge to his sentence,
and affirm. See 8 th Cir. R. 47A(a).
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