United States v. Gomez-Estrada

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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