United States Court of Appeals
For the First Circuit
No. 01-1085
UNITED STATES OF AMERICA,
Appellee,
v.
GUILLERMO DEJESUS GOMEZ-ESTRADA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Saris,* District Judge.
Leo T. Sorokin, Federal Defender Office, for appellant.
Timothy Q. Feeley, Assistant United States Attorney, with
whom James B. Farmer, United States Attorney, was on brief, for
the United States.
November 27, 2001
______________
*Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. A federal grand jury charged
defendant-appellant Guillermo DeJesus Gomez-Estrada with
unlawful reentry (i.e., being an alien who, having been
previously arrested and deported from the United States, was
found therein without having received the express consent of the
United States Attorney General to reapply for admission). The
statute invoked by the grand jury, 8 U.S.C. § 1326, provides in
the first instance for a maximum sentence of two years, id. §
1326(a), but makes provision for increases in that maximum in
certain circumstances, id. § 1326(b). One such circumstance is
when the defendant has been convicted of committing an
"aggravated felony" prior to his unlawful reentry.1 See id. §
1326(b)(2). In that event, the maximum penalty rises to twenty
years.
The appellant eventually pled guilty to the single-
count indictment. At the Rule 11 hearing, the government
represented to the court that, prior to the appellant's initial
deportation, he had been convicted of a drug-trafficking offense
— an aggravated felony — in the United States District Court for
the District of Rhode Island and sentenced to a ten-year
incarcerative term. Although the appellant did not specifically
1
By statute, the term "aggravated felony" includes crimes
involving illicit trafficking in controlled substances. See 8
U.S.C. § 1101(a)(43)(B).
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admit to the prior conviction, the district court nonetheless
accepted his plea (warning him that he might face a sentence of
up to twenty years). At the disposition hearing, the government
repeated its representation and provided the court with
appropriate documentation. Once again, the appellant did not
admit to the prior conviction, but neither did he challenge the
accuracy of the prosecutor's representation.
As said, the significance of the prior conviction is
that it operates as a sentence-enhancer in the "unlawful
reentry" context. Here, however, the appellant contested the
power of the court to take the prior conviction into account.
In this regard, he noted that it had neither been referenced in
the indictment nor proven to a jury beyond a reasonable doubt.
Thus, he contended, the Supreme Court's opinion in Apprendi v.
New Jersey, 530 U.S. 466 (2000), dictated that an enhanced
sentence could not be imposed.
The sentencing court rejected this contention, deeming
itself bound by the Supreme Court's antecedent decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Accordingly, the court gave weight to the prior conviction and
imposed an enhanced sentence (forty months). This appeal
ensued.
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Before us, the appellant restates his Apprendi-based
thesis. He starts with the general premise that, absent a
waiver, any fact increasing the statutory maximum penalty must
be charged in an indictment and proven to a jury beyond a
reasonable doubt. Although he acknowledges that the Apprendi
Court specifically carved out the fact of a prior conviction
from the operation of this general premise, see Apprendi, 530
U.S. at 490, he asserts that this carve-out (and the Court's
concomitant refusal to overrule Almendarez-Torres) was
qualified. In his view, the Apprendi Court limited the holding
of Almendarez-Torres to those cases in which a defendant
actually admits to a prior felony conviction.
This, then, is the linchpin of the appellant's thesis.
Because he avoided an explicit admission of the prior
conviction, the appellant reasons, Almendarez-Torres does not
apply; Apprendi governs unreservedly; and, accordingly, the
maximum penalty that could have been levied in his case, absent
a jury finding that he had previously been convicted of an
aggravated felony, was the two-year (unenhanced) statutory
maximum. See 8 U.S.C. § 1326(a). Although we give the
appellant high marks for ingenuity, we reject his argument.
In the first place, the Apprendi Court, 530 U.S. at
489-90, made pellucid that it was not overruling Almendarez-
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Torres; and we deem ourselves bound to follow the holding in
Almendarez-Torres unless and until the Supreme Court abrogates
that decision. In so ruling, we align ourselves not only with
precedent in this circuit, e.g., United States v. Johnstone, 251
F.3d 281, 286 n.7 (1st Cir. 2001); United States v. Terry, 240
F.3d 65, 73-74 (1st Cir.), cert. denied, 121 S. Ct. 1965 (2001),
but also with an unbroken skein of cases from our sister
circuits, e.g., United States v. Palomino-Rivera, 258 F.3d 656,
661 (7th Cir. 2001); United States v. Raya-Ramirez, 244 F.3d
976, 977 (8th Cir. 2001); United States v. Latorre-Benavides,
241 F.3d 262, 264 (2d Cir.) (per curiam), cert. denied, 121 S.
Ct. 2013 (2001); United States v. Guadamuz-Solis, 232 F.3d 1363,
1363 (11th Cir. 2000) (per curiam); United States v. Martinez-
Villalva, 232 F.3d 1329, 1331 (10th Cir. 2000); United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531
U.S. 1202 (2001).
In the second place, there is simply no authority for
the appellant's imaginative argument that Apprendi somehow
limited the holding of Almendarez-Torres to only those unlawful
reentry cases in which the defendant explicitly admits the
commission of a prior aggravated felony. The only court
squarely to confront this argument has repudiated it, see United
States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir. 2001),
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and several of our own post-Apprendi cases (such as Johnstone
and Terry) involve defendants who appear to have made no such
express admission. To cinch matters, the appellant's argument
gives undue prominence to a stray reference in Almendarez-
Torres. The unmistakable focus of that decision was section
1326(b) itself, measured against the requirements of the
Constitution. See Almendarez-Torres, 523 U.S. at 226. In the
critical portion of its opinion, the Almendarez-Torres Court
never mentioned, let alone relied on, the defendant's admission
of his prior convictions during the change-of-plea colloquy.2
We need go no further. We hold unequivocally that
Apprendi neither overruled Almendarez-Torres nor limited
Almendarez-Torres to cases in which a defendant admits a prior
aggravated felony conviction on the record. To the contrary,
when the Apprendi Court wrote that "[o]ther 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," Apprendi, 530
U.S. at 490 (emphasis supplied), the Court meant exactly that.
It follows inexorably that the district court appropriately
2The Almendarez-Torres Court referred to the defendant's
"admission" anent his prior convictions only in the context of
a far different issue — the quantum of proof required at
sentencing. Almendarez-Torres, 523 U.S. at 248. That issue is
not raised in this appeal.
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enhanced the appellant's sentence for unlawful reentry on the
basis of his prior conviction for an aggravated felony even
though the existence of that conviction was not admitted by the
appellant, nor charged in the indictment, nor proved to a jury
beyond a reasonable doubt.
Affirmed.
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