USA v. Tony Gastineau

1The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1422
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Tony Ever Salas-Pineda, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 1, 2007
Filed: February 7, 2007
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Before COLLOTON, HANSEN, and BENTON, Circuit Judges.
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PER CURIAM.
Tony Salas-Pineda (“Salas”) pled guilty to illegally re-entering the United
States after he was deported for an aggravated felony – a Minnesota drug trafficking
offense – in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The district court 1 imposed
a sentence of 46 months’ imprisonment. On appeal, Salas argues the enhanced
sentencing provisions of section 1326(b) violate the Fifth and Sixth Amendments,
because a defendant’s sentence is enhanced based on a prior conviction, which is a
fact that must be pleaded in an indictment and proven beyond a reasonable doubt.

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We reject Salas’s claims. Salas’s prior conviction was specifically alleged in
the indictment to which he pleaded guilty, thus eliminating any potential issue under
the Fifth Amendment. Salas also admitted in his unconditional plea agreement that
he had a prior conviction for an aggravated felony, thus satisfying any Sixth
Amendment concerns. See United States v. McCully, 407 F.3d 931, 933 (8th Cir.
2005). Moreover, as Salas concedes, even absent the specific allegation in the
indictment and the admission in the plea agreement, his argument fails under
Almendarez-Torres v. United States, 523 U.S. 224 (1998), which remains good law.
See United States v. Levering, 431 F.3d 289, 295 (8th Cir. 2005), cert. denied, 126 S.
Ct. 2366 (2006); United States v. Raya-Ramirez, 244 F.3d 976, 977 (8th Cir. 2001).
Accordingly, we affirm.
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