                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3844
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Arkansas.
Edgardo Torres-Alvarado,                *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: May 9, 2005
                                Filed: August 5, 2005
                                 ___________

Before LOKEN, Chief Judge, BEAM and SMITH, Circuit Judges.
                              ___________

SMITH, Circuit Judge.

       In this criminal appeal, Edgardo Torres-Alvarado ("Torres-Alvarado") argues
that he was sentenced in violation of the Sixth Amendment because the judge, not the
jury, found beyond a reasonable doubt that his prior drug conviction was an
aggravated felony or drug trafficking offense. We disagree and affirm.
                                   I. Background
       Torres-Alvarado was indicted and charged in the United States District Court
for the Western District of Arkansas, Fort Smith Division,1 with illegal re-entry into
the United States after deportation for an aggravated felony in violation of 8 U.S.C.
§§ 1326(a) & (b)(2). Specifically, the one-count indictment charged that:

      On or about the 15th day of March, 2004, in the Western District of
      Arkansas, Fort Smith Division, the defendant, EDGARDO TORRES-
      ALVARADO, a/k/a/ Edgardo Alvarado, an alien who had previously
      been convicted of Possession for Sale of Cocaine Base, in the Superior
      Court of California, in and for the County of Los Angeles, an aggravated
      felony, and thereafter was arrested and deported from the United States
      pursuant to law, knowingly and unlawfully was found in the United
      States in the Western District of Arkansas, Fort Smith Division, the said
      defendant having not obtained the consent of the Attorney General of
      the United States or his successor, pursuant to 6 U.S.C. §§ 202(3) and
      (40) and [6 U.S.C. §] 557, for reapplication by the defendant for
      admission into the United States, in violation of Title 8 U.S.C. §§
      1326(a) and (b)(2).

Torres-Alvarado pled guilty to the allegations contained in the one-count indictment.
At sentencing, the government sought an increase in offense level based on U.S.S.G.
§ 2L1.2(b)(1)(B), which allows a 12-point enhancement "[i]f the defendant previously
was deported, or unlawfully remained in the United States, after . . . a conviction for
a felony drug trafficking offense."2 Torres-Alvarado objected to the enhancement and


      1
      The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
      2
        In his brief, Torres-Alvarado argues that he erroneously received a 12-point
enhancement for an aggravated felony under § 2L1.2(b)(1)(A). The Presentence
Investigation Report recommended a 12-point enhancement for a felony drug
trafficking offense under § 2L1.2(b)(1)(B). Section 2L1.2(b)(1)(A) does not provide
an enhancement based on an aggravated felony conviction; § 2L1.2(b)(1)(C) does,

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argued that the prior felony conviction for possession of cocaine base that was
contained in the indictment was not admitted or proved to a jury beyond a reasonable
doubt. The district court overruled the objection and sentenced Torres-Alvarado to
37 months' imprisonment.

                                     II. Discussion
       Torres-Alvarado argues on appeal, as he did in the district court, that because
of Blakely v. Washington, 542 U.S. 296 (2004), the jury, not the judge, should have
determined whether his prior felony conviction was a drug trafficking offense or an
aggravated felony. When Torres-Alvarado was sentenced, the United States Supreme
Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), was pending and
it was unclear whether and to what extent Blakely would apply to the United States
Sentencing Guidelines. The applicability of Blakely to the Guidelines is now no
longer in question. In Booker, the Supreme Court instructed that under the Federal
Sentencing Guidelines, "[a]ny fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by the facts established by
a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt." Id. at 756. The Court invalidated the Guidelines under
the Sixth Amendment to the extent that they were applied in a mandatory manner. Id.
at 764. While district courts are no longer bound to their strictures, the Guidelines
must be consulted and taken into account at sentencing. Id. at 767. Booker also
reaffirmed the exception in Almendarez-Torres v. United States, 523 U.S. 224 (1998),
and Apprendi v. New Jersey, 530 U.S. 466 (2000), for prior convictions. Booker, 125
S. Ct. at 756. See also Shepard v. United States, 125 S. Ct. 1254, 1262 (2005).

      Torres-Alvarado maintains that he neither admitted that his prior felony
conviction was an aggravated felony or a drug trafficking offense, nor did the
government prove these facts to a jury beyond a reasonable doubt. The government


but that enhancement is only 8 points.

                                          -3-
responds that by pleading guilty to the charges contained in the indictment, Torres-
Alvarado admitted that his prior felony conviction was aggravated or a drug
trafficking offense. We hold that even if Torres-Alvarado did not make such an
admission, his appeal is without merit.

        "For purposes of . . . [U.S.S.G. § 2L1.2], 'aggravated felony' has the meaning
given that term in section 101(a)(43) of the Immigration and Nationality Act (8
U.S.C. § 1101(a)(43)), without regard to the date of conviction for the aggravated
felony." U.S.S.G. § 2L1.2 cmt. n.3(A). Section 1101(a)(43) of Title 8 includes in its
definition of aggravated felony any "illicit trafficking in a controlled substance (as
defined in section 802 of Title 21), including a drug trafficking crime (as defined in
section 924©) of Title 18) . . . whether in violation of Federal or State law." Section
924(c)(2) of Title 18 "defines a drug trafficking crime as including 'any felony
punishable under the Controlled Substances Act.'" United States v. Haggerty, 85 F.3d
403, 406 (8th Cir. 1996); see also 21 U.S.C. § 801. Thus, Torres-Alvarado's prior
felony conviction "is an aggravated felony if (1) it is punishable under the Controlled
Substances Act, and (2) it is a felony." Haggerty, 85 F.3d at 406. It is undisputed that
Torres-Alvarado's prior conviction for possession for sale of cocaine base is a felony
that is punishable under the Controlled Substances Act. Because the statute defines
aggravated felony to include Torres-Alvarado's prior felony conviction, the district
court did not make any factual findings in determining that Torres-Alvarado's prior
felony conviction was aggravated.


       For purposes of U.S.S.G. § 2L1.2, "'[d]rug trafficking offense' means an
offense under federal, state, or local law that prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance (or counterfeit substance)
or the possession of a controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense." U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv). Because this statute defines drug trafficking offense to also include


                                          -4-
Torres-Alvarado's prior felony conviction, the district court also did not make any
factual finding in determining that Torres-Alvarado's prior felony conviction was a
drug trafficking offense. While it is unclear whether Almendarez-Torres and its
felony exception will remain good law, see Shepard, 125 S. Ct. at 1264 (Thomas J.
concurring) ("a majority of the Court now recognizes that Almendarez-Torres was
wrongly decided"), we are bound by Almendarez-Torres until the Supreme Court
explicitly overrules it.


                                 III. Conclusion
       The district court did not violate the Sixth Amendment in determining that
Torres-Alvarado's prior conviction was either an aggravated felony or a drug
trafficking offense. Torres-Alvarado's sentence is affirmed.
                      ______________________________




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