USA v. Robert John Jackaway

1The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3832
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Luis Yair Gutierrez-Lopez, * District of Nebraska.
* [UNPUBLISHED]
Appellant. *
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Submitted: March 16, 2001
Filed: March 21, 2001
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
___________
PER CURIAM.
Luis Yair Gutierrez-Lopez 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 78 months imprisonment and 3 years supervised release.

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-2-
Gutierrez-Lopez argues on appeal that because the fact of a prior aggravated-
felony conviction was not alleged in the indictment and was neither proven to a jury nor
admitted through his guilty plea, the enhanced sentence violates the standards
announced in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). We reject this
argument because Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998),
which upheld the validity of the section 1326(b)(2) aggravated-felony enhancement for
section 1326(a) violators, was not overruled by Apprendi. See 120 S. Ct. at 2362;
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.

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