                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3755
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              * Appeal from the United States
                                         * District Court for the
      v.                                 * District of Nebraska.
                                         *
Felix Alvarez,                           *    [TO BE PUBLISHED]
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: October 7, 2002

                                   Filed: November 13, 2002
                                    ___________

Before BOWMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
                          ___________

PER CURIAM.

       Felix Alvarez was charged and convicted of two drug trafficking counts,
conspiring to distribute and possessing with intent to distribute a “detectable amount”
of methamphetamine. The district court imposed concurrent sentences of 360 months
and 240 months shortly after the Supreme Court decided Apprendi v. New Jersey,
530 U.S. 466 (2000). Alvarez appealed, and we remanded for resentencing because
the statutory maximum sentence where no drug quantity has been found by the jury
is 240 months, see 21 U.S.C. § 841(b)(1)(C), and “Apprendi held that any fact, other
than a prior conviction, that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and found beyond a reasonable
doubt.” United States v. Alvarez, 254 F.3d 725, 727 (8th Cir. 2001). On remand, the
district court1 imposed a sentence of 240 months on each count, the statutory
maximum. However, applying U.S.S.G. § 5G1.2(d), the court made 22 months of
the second 240-month sentence consecutive to the first, so that the combined sentence
was within Alvarez’s 262-327 month Guidelines sentencing range. Alvarez appeals,
raising a number of sentencing issues. We affirm.

       On appeal, Alvarez urges us to construe Apprendi, “through good faith
extension,” as invalidating the Sentencing Guidelines to the extent they permit a
sentencing court to make drug quantity findings based upon a preponderance of the
evidence. Thus, in this case, he argues that the drug quantity for both counts of
conviction must be limited to 2.4 grams of methamphetamine, because that is the
quantity the jury “had before it.” Similarly, he argues that the district court
committed plain error in adding a two-level firearm enhancement under § 2D1.1(b)(1)
because the indictment did not charge, and the jury did not find, that he possessed a
firearm in connection with the drug offenses. Recently, we have squarely rejected
these contentions. “Use of judicially determined drug quantity [or other sentencing
factors such as use of a firearm] as a basis for sentencing is permissible . . . so long
as the defendant’s sentence does not exceed the statutory maximum sentence
available for . . . the offense simpliciter.” United States v. Diaz, 296 F.3d 680, 682
(8th Cir. 2002) (en banc); see generally Harris v. United States, 122 S. Ct. 2406,
2419-20 (2002).

      Alvarez further argues that Apprendi presaged the overruling of Almendarez-
Torres v. United States, 523 U.S. 224 (1998), and therefore the district court
committed plain error in sentencing him as a career offender when his prior


      1
       The HONORABLE RICHARD G. KOPF, Chief Judge of the United States
District Court for the District of Nebraska.

                                          -2-
convictions were not submitted to the jury as an element of his offenses. However,
the Court in Apprendi declined to overrule Almendarez-Torres. Indeed, “the fact of
a prior conviction” was expressly excluded from the holding in Apprendi. 530 U.S.
at 490. Unless and until the Court overrules Almendarez-Torres, we must follow it.
Thus, the district court did not err in sentencing Alvarez as a career offender.

       After the district court resentenced Alvarez to a total of 262 months in prison,
the bottom of his sentencing range, this court en banc held that U.S.S.G. § 5G1.2(d)
“requires that if the maximum sentence allowed under any one count does not reach
the total punishment as calculated under the guidelines, the district court must impose
consecutive sentences on the multiple counts until it reaches a sentence equal to the
total punishment calculation.” Diaz, 296 F.3d at 684. The district court’s decision
was consistent with this subsequent ruling, and accordingly its judgment must be
affirmed.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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