                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-3098
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      Eastern District of Missouri.
Isidro Muro-Mendoza,                      *
                                          *           [UNPUBLISHED]
             Appellant.                   *

                                ________________

                                Submitted: March 14, 2005
                                    Filed: March 21, 2005
                                ________________

Before WOLLMAN, LAY, and HANSEN, Circuit Judges.
                        ________________

PER CURIAM.

       Isidro Muro-Mendoza appeals the 34-month sentence imposed by the district
court1 following Muro-Mendoza’s guilty plea to illegally reentering the United States
following conviction of an aggravated felony, see 8 U.S.C. § 1326(a), (b)(2), arguing
that the sentence violated the Fifth and Sixth Amendments as discussed in Blakely
v. Washington, 124 S. Ct. 2531 (2004). We affirm Muro-Mendoza’s sentence.


      1
       The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
       Muro-Mendoza’s indictment charged him with being an alien who had
previously been deported from the United States, subsequent to being convicted of
an aggravated felony, and who, after the deportation and without permission, was
found in the United States, in violation of 8 U.S.C. § 1326(a), and punishable under
8 U.S.C. § 1326(b)(2). Muro-Mendoza did not enter a plea agreement but did enter
a Stipulation and Plea Document with the government, in which Muro-Mendoza
admitted to knowingly violating 8 U.S.C. § 1326(a), including that Muro-Mendoza
had a prior conviction for an aggravated felony offense. (Dist. Ct. R. at 5.) He
stipulated that he had been convicted on December 31, 1996, in South Gate,
California, for manufacturing false citizenship documents. (Id. at 4.)

       Muro-Mendoza entered his guilty plea at a Change of Plea Hearing on May 19,
2004, where he admitted the allegations in the indictment, including that he had a
prior conviction for an aggravated felony. At his sentencing hearing on July 29,
2004, he argued that he had not admitted that his prior conviction met the definition
of an aggravated felony, and that the Supreme Court’s recent Blakely decision
required that that fact be decided by a jury. Without a jury finding of an aggravated
felony, Muro-Mendoza argued to the sentencing court that his sentence should not
be enhanced under § 1326(b)(2) or United States Sentencing Guidelines §
2L1.2(b)(1)(C). The district court rejected his argument, applied the eight-level
enhancement required by USSG § 2L1.2(b)(1)(C), and sentenced Muro-Mendoza
within the resulting sentencing range of 30-37 months to 34 months imprisonment.

       Putting aside the question of whether Muro-Mendoza admitted the fact of a
prior aggravated felony, his appeal is without merit. The Supreme Court has made
clear that any fact that increases a sentence above the maximum sentence authorized
by a jury verdict or guilty plea must be admitted by the defendant or submitted to a
jury for a finding beyond a reasonable doubt. See United States v. Booker, 125 S. Ct.
738, 746 (2005) (holding that the Sixth Amendment as construed in Blakely applied
to the United States Sentencing Guidelines). The Supreme Court “reaffirm[ed its]

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holding in Apprendi,” maintaining Apprendi’s exception for the fact of a prior
conviction. Booker, 125 S. Ct. at 756. The United States Code defines an aggravated
felony to include an offense described in 18 U.S.C. § 1546 related to immigration
document fraud, and for which the term of imprisonment is at least twelve months.
See 8 U.S.C. § 1101(a)(43)(P). Because the statute defines aggravated felony to
include Muro-Mendoza’s prior conviction for manufacturing false citizenship
documents, the judge did not make any factual findings in determining that Muro-
Mendoza’s prior conviction was for an aggravated felony. See United States v.
Sanders, 377 F.3d 845, 848 n.3 (8th Cir. 2004) (noting that the judge did not make
improper factual findings where the relevant statute defined burglary as a violent
felony for purposes of 18 U.S.C. § 924(e)). This being so, the fact of a prior
aggravated felony falls within the prior conviction exception to Apprendi. See
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998) (upholding the
validity of the aggravated felony enhancement of § 1326(b)(2) as a sentencing factor);
United States v. Kempis-Bonola, 287 F.3d 699, 702 (8th Cir.) (noting that Apprendi
did not overrule Almendarez-Torres and holding that “[e]xisting precedent dictates
that the ‘aggravated felony’ consideration of § 1326(b)(2) is not a fact that must be
submitted to a jury”), cert. denied, 537 U.S. 914 (2002). Thus, the district court did
not violate the Sixth Amendment as recently construed by the Supreme Court when
it applied the sentencing enhancement contained in § 1326(b)(2) and USSG §
2L1.2(b)(1)(C) without submitting the issue of the aggravated felony to a jury.

       Muro-Mendoza also argues that the enhancement should not have been applied
because the underlying conviction was not in fact a felony conviction, but rather a
misdemeanor. Muro-Mendoza agrees that we must apply plain error to this claim not
raised before the district court. See United States v. Hart, 397 F.3d 643, 647 (8th
Cir. 2005) (“Under the plain error standard, we will only reverse obvious errors which
affect a defendant’s substantial rights and seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” (internal marks and citations omitted)).



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        The Presentence Investigation Report (PSR) refers to two convictions for
manufacturing false citizenship documents. Muro-Mendoza was sentenced for the
first conviction on December 31, 1996, to probation with the condition of 33 days in
jail. This is the conviction referenced in the Stipulation and which Muro-Mendoza
argues is not a felony, but a misdemeanor, since his sentence was less than twelve
months. See USSG § 2L1.2, comment. (n.3(A)) (defining aggravated felony by
reference to 8 U.S.C. § 1101(a)(43)); 8 U.S.C. § 1101(a)(43)(P)(ii). However, Muro-
Mendoza was also sentenced on November 4, 1997, for a separate conviction of
manufacturing false citizenship documents, for which he served 365 days in jail on
a suspended five-year sentence to be followed by three years of probation. His
probation was eventually revoked and the five-year sentence was executed. Muro-
Mendoza did not make any objections to the PSR’s recitation of this conviction. This
separate conviction clearly fits the definition of an aggravated felony. See §
1101(a)(43)(P). Any error in relying on the first conviction as opposed to the second
conviction did not affect Muro-Mendoza’s substantial rights, and he therefore has
failed to establish that he is entitled to relief under plain error review standards.

      The judgment and sentence imposed by the district court is affirmed.
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