                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-2602
                                  ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Luis Arnoldo Villanueva-Martinez,      *
                                       * [UNPUBLISHED]
            Defendant - Appellant.     *
                                  ___________

                             Submitted: March 14, 2005
                                Filed: March 30, 2005
                                 ___________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

       Luis Arnoldo Villanueva-Martinez pled guilty to being an illegal alien found
in the United States following deportation after having been convicted of an
aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The district
court1 imposed a sentence of 78 months under the federal sentencing guidelines, and
Villanueva-Martinez appeals.




      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
        Villanueva-Martinez argues that his guideline sentence violated his Sixth
Amendment rights, citing Blakely v. Washington, 124 S. Ct. 2531 (2004). He objects
to his 16 level sentencing enhancement based on his having been previously deported
after a felony drug trafficking conviction. He also contends that his guilty plea and
conviction should be vacated, arguing that his plea was neither voluntary nor
intelligent because he had been incorrectly advised that his sentence would be
controlled by the guidelines. The government responds that a sentencing
enhancement based on a defendant’s prior conviction does not have to be presented
to a jury under the Apprendi line of cases, that Villanueva-Martinez was correctly
sentenced under the guidelines, and that there was no plain error.

       In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme
Court held that a prior felony conviction is a sentencing factor for the court rather
than a fact issue for the jury. That principle has been reaffirmed most recently in
United States v. Booker, 125 S. Ct. 738, 756 (2005). See also, Blakely, 124 S. Ct. at
2536; Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Moreover, Villanueva-
Martinez acknowledged in his plea agreement that he had been convicted of an
aggravated felony before his deportation. The sentencing enhancement applied by
the district court thus did not violate Villanueva-Martinez's rights or invalidate his
guilty plea.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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