                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-2888
                        ___________________________

                             United States of America,

                       lllllllllllllllllllll Plaintiff - Appellee,

                                           v.

                            Huascar Galvez Montoya,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                             Submitted: April 18, 2014
                              Filed: August 15, 2014
                                  [Unpublished]
                                  ____________

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
                           ____________

PER CURIAM.

     Huascar Galvez Montoya pleaded guilty to conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The
district court1 sentenced Montoya to 240 months’ imprisonment. Montoya appeals
his sentence, and we affirm.

       In September 2009, Montoya was convicted in Arizona state court for sale or
transportation of marijuana and misconduct involving weapons. He was sentenced
to one year in prison and three years’ probation. Although Montoya’s probation was
not discharged until September 2012, he was released to U.S. Immigration and
Customs Enforcement in April 2010 for removal to his native Mexico.

        In March 2013, Montoya pleaded guilty to conspiring to distribute
methamphetamine from 2006 through December 2011. The probation office
recommended an advisory sentencing guideline range of 324 to 405 months’
imprisonment based on Montoya’s offense level of 39 and criminal history category
of III. Montoya received two criminal history points for his Arizona conviction and
an additional two points for committing the instant offense while on probation for his
Arizona conviction.

       At Montoya’s sentencing, the government acknowledged that it had agreed to
refrain from filing an information under 21 U.S.C. § 851 that would give notice of
Montoya’s prior drug conviction and enhance the statutory minimum sentence for
Montoya’s federal offense. As a result, Montoya was not subject to the twenty-year
mandatory-minimum sentence that otherwise would have applied under 21 U.S.C.
§ 841(b)(1)(A). The district court, after considering the factors set forth in 18 U.S.C.
§ 3553(a), varied downward from the advisory range of 324 to 405 months’ and
sentenced Montoya to 240 months’ imprisonment.




      1
       The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

                                          -2-
       Montoya first argues that the district court erred by effectively applying a
mandatory minimum punishment of twenty years’ imprisonment based on 21 U.S.C.
§ 841(b)(1)(A), even though the government did not file the notice under § 851 that
was necessary to trigger the twenty-year minimum. He relies on the following
comments of the district court at sentencing: “I’ve also considered the will of
Congress, which would be that you not be sentenced below 240 months. I recognize
the Government didn’t file the 851 notice here, but it was Congress’ desire that you
receive at least a 20-year sentence.” These remarks do not establish error. The
district court recognized that the government did not file the § 851 notice, and thus
understood that it was not bound by law to impose a sentence of at least twenty years’
imprisonment. That the court took into account—in exercising its discretion under
§ 3553(a)—that Congress said a person with Montoya’s offense conduct and criminal
history “shall be sentenced to a term of imprisonment which may not be less than 20
years” does not show that the court mistakenly thought the twenty-year term was
mandatory.

       In a related contention, Montoya argues that the district court violated his
rights under the Sixth Amendment by applying the mandatory twenty-year minimum
based on a fact that was not found by a jury. Putting aside the fact that the court did
not apply an incorrect statutory minimum, the Constitution permits a judge to find the
fact of a prior conviction that increases a statutory punishment. Almendarez-Torres
v. United States, 523 U.S. 224, 226-27, 247 (1998); see Alleyne v. United States, 133
S. Ct. 2151, 2160 n.1 (2013); United States v. Abrahamson, 731 F.3d 751, 752 (8th
Cir. 2013).

      Montoya next argues that the district court committed procedural error in
calculating the advisory sentencing guideline range. He disputes the court’s decision
to count two criminal history points for Montoya’s committing the instant offense
while on probation for his Arizona conviction. Montoya contends that “his probation



                                         -3-
in Arizona was effectively automatically terminated by his deportation to Mexico
prior to the end of his probationary term.”

       This argument is foreclosed by United States v. Barrera, 562 F.3d 899 (8th Cir.
2009), which held that deportation does not automatically extinguish an existing term
of probation. Id. at 901–02. Because the conspiracy to which Montoya pleaded
guilty extended from 2006 until December 2011 and because his Arizona probation
was not discharged until September 2012, the district court correctly assessed
Montoya two criminal history points for committing the conspiracy offense while on
probation. See USSG § 4A1.1(d); see also id. § 4A1.1, comment. (n.4) (“Two points
are added if the defendant committed any part of the instant offense . . . while under
any criminal justice sentence, including probation.”) (emphasis added).

                                  *       *      *

      The judgment of the district court is affirmed.
                     ______________________________




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