                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                              ________________

                                 No. 01-2746
                              ________________

United States of America,             *
                                      *
            Appellee,                 *
                                      *     Appeal from the United States
      v.                              *     District Court for the
                                      *     District of Minnesota.
Sylvestre Kempis-Bonola, also         *
known as Marcos Cadena-Lopez,         *
also known as Antonio Moran-          *
Baltazar, also known as Silvestre     *
Bonala, also known as Silvestre       *
Kempis, also known as Julio Cesar     *
Rodriguez,                            *
                                      *
            Appellant.                *

                              ________________

                              Submitted: December 13, 2001
                                  Filed: April 19, 2002
                              ________________

Before HANSEN,1 Chief Judge, HEANEY and MURPHY, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.




      1
       The Honorable David R. Hansen became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on February 1, 2002.
      Sylvestre Kempis-Bonola appeals both his conviction and sentence following
his guilty plea to one count of unlawful reentry after deportation. We affirm.

       In March 2001, a federal grand jury charged Kempis-Bonola with one count
of unlawful reentry after deportation in violation of 8 U.S.C. § 1326(a) (authorizing
a 2-year maximum term of imprisonment) and (b)(2) (raising the maximum sentence
to 20 years for aliens with a prior aggravated felony conviction) (2000). The facts
supporting this charge include that Kempis-Bonola was found in the United States
after having been deported on four separate occasions in the past. Also, his criminal
record demonstrates that prior to the initiation of any deportation proceedings, he had
been convicted in California state court of two aggravated felony charges–a 1996
conviction for possession of cocaine base for sale and a 1995 conviction for the sale
of cocaine base.

       On the current charge, Kempis-Bonola entered into a negotiated plea agreement
with the government in which he admitted to the conduct of illegal reentry, admitted
that he had two prior aggravated felonies involving the sale of controlled substances,
and agreed that this conduct subjected him to a maximum statutory penalty of 20
years of imprisonment. Kempis-Bonola agreed that a proper application of the
federal sentencing guidelines would result in a sentencing range of 77 to 96 months
of imprisonment. The plea agreement explicitly states that the defendant understands
that by pleading guilty, he waives all rights “to appeal or to contest, directly or
collaterally, his sentence on any ground, with the exception of the grounds of
ineffective assistance of counsel, unless the Court should impose a sentence in
violation of the law apart from the sentencing guidelines.” (Appellant’s Add. at B-7.)




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       The district court2 accepted Kempis-Bonola’s guilty plea and adopted the
factual findings and sentencing guideline application as set forth in the presentence
investigation report, including the sentencing range of 77 to 96 months, as agreed
upon in the plea agreement. The district court then sentenced Kempis-Bonola at the
bottom of the applicable sentencing range to a term of 77 months of imprisonment.
Kempis-Bonola now appeals, arguing that § 1326(b)(2) violates his Sixth Amendment
right to have all facts that increase the maximum penalty submitted to a jury and
determined beyond a reasonable doubt.

        Initially, the government argues that Kempis-Bonola has waived his right to
appeal by pleading guilty. By entering an unconditional guilty plea, a criminal
defendant waives the right to appeal all nonjurisdictional defects. United States v.
Beck, 250 F.3d 1163, 1166 (8th Cir. 2001). In this case, however, Kempis-Bonola’s
guilty plea expressly reserved the right to challenge on appeal any issues that might
arise if the district court “impose[d] a sentence in violation of the law apart from the
sentencing guidelines.” (Appellant’s Add. at B-7.) Kempis-Bonola argues that this
clause preserved his right to appeal the one issue he raises–that the district court
imposed a sentence on the basis of a statute that violates his Sixth Amendment rights.
We agree that this particular issue falls within the exception listed in the plea
agreement, and consequently we find no waiver of this narrow issue.

      We review Kempis-Bonola’s constitutional challenge for plain error because
he did not raise this issue before the district court. United States v. Letts, 264 F.3d
787, 789 (8th Cir. 2001), cert. denied, 122 S. Ct. 1211 (2002). Under plain error
review, relief is not warranted unless the defendant demonstrates an error that is plain
and that affects the defendant’s substantial rights. Jones v. United States, 527 U.S.
373, 389 (1999); United States v. Olano, 507 U.S. 725, 732 (1993). The court then


      2
     The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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has discretion to correct a forfeited error if “the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732
(internal quotations and alterations omitted).

       Kempis-Bonola argues that § 1326(b)(2) violates the Sixth Amendment
principles announced in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In
Apprendi, the Supreme Court held: “Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” The crime of
illegal reentry after deportation provides a 2-year maximum sentence pursuant to §
1326(a) for an alien who reenters the United States after having been deported. That
maximum sentence is increased to 10 years pursuant to § 1326(b)(1) if the alien had
a prior felony conviction, and to 20 years pursuant to § 1326(b)(2) if the alien had a
prior aggravated felony conviction.3 While a finding that the prior felony conviction
qualifies as “aggravated” is a fact that can increase the defendant’s sentence beyond
the initially prescribed maximum sentence, the plain language of Apprendi excepts
the fact of prior convictions from its holding. Therefore, there can be no Apprendi
error in this case.

      The Court in Apprendi did not overrule its decision in Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), which upheld the validity of the aggravated
felony enhancement of § 1326(b)(2). United States v. Raya-Ramirez, 244 F.3d 976,


       3
         The relevant definition of “aggravated felony” specifically includes the crime
of “illicit trafficking in a controlled substance . . . including a drug trafficking crime.”
8 U.S.C. § 1101(a)(43)(B). Kempis-Bonola admitted that he had two prior
“aggravated felonies” that fit this description. Because he pleaded guilty and
admitted all of the material facts, he has waived his right to challenge the district
court’s fact-findings and waived his right to a jury determination on all issues related
to the prosecution. United States v. McIntosh, 236 F.3d 968, 975 (8th Cir.), cert.
denied, 522 U.S. 1022 (2001).
                                             4
977 (8th Cir.), cert. denied, 122 S. Ct. 223 (2001). The Almendarez-Torres Court
held that in § 1326(b)(2), “Congress intended to set forth a sentencing factor . . . and
not a separate criminal offense.” 523 U.S. at 235. The Court reasoned in part that
recidivism is a traditional basis for increasing an offender’s sentence, id. at 243, and
that making the jury aware that the defendant’s prior felonies were “aggravated”
carries a risk of unfair prejudice to the defendant that Congress would not have
wanted to create, id. at 235. The Court in Apprendi expressly refused to revisit the
Almendarez-Torres case. 530 U.S. at 489-90. Instead, the Court treated recidivism
as a narrow exception to the general rule announced in the Apprendi decision. Id. at
490; see also United States v. Aguayo-Delgado, 220 F.3d 926, 932 n.4 (8th Cir.)
(“The Court in Apprendi . . . retained an exception for recidivism.”), cert. denied, 531
U.S. 1026 (2000).

       Kempis-Bonola argues that under Apprendi, the continuing validity of the
holding of Almendarez-Torres is questionable. Regardless of what the future may
hold, the legal landscape today is clear: Almendarez-Torres has not been overruled.
See United States v. Peltier, 276 F.3d 1003, 1006 (8th Cir. 2002) (“We must apply
Supreme Court precedent as it stands, and that precedent does not require that either
the existence or substance of [the defendant’s] earlier convictions be submitted to a
jury and proven beyond a reasonable doubt.”). Existing precedent dictates that the
“aggravated felony” consideration of § 1326(b)(2) is not a fact that must be submitted
to a jury. Raya-Ramirez, 244 F.3d at 977 (rejecting the argument that the enhanced
sentence of § 1326(b)(2) is unconstitutional where the aggravated felony was neither
proved to a jury nor admitted through the defendant’s guilty plea).

      Kempis-Bonola attempts to distinguish the Almendarez-Torres case, which
addressed the Fifth Amendment right to indictment by a grand jury, from his Sixth
Amendment challenge to § 1326(b)(2) on the ground that a different constitutional
amendment is at issue here. We find no merit to this attempted distinction in this
case. The reason that there can be no reversal here based on Apprendi is because, as

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we have already noted, the issue involves a prior conviction, and the holding of
Apprendi expressly excepts the issue of recidivism from the rule it announced. See
United States v. Gomez-Estrada, 273 F.3d 400, 402 (1st Cir. 2001) (noting that when
the Apprendi Court said “‘[o]ther than the fact of a prior conviction’ . . . the Court
meant exactly that.”)

       Kempis-Bonola attempts to cast this case as something more than recidivism
by asserting that the determination of whether a prior conviction is “aggravated”
requires the finding of facts beyond the mere fact of conviction under this statute, and
so Apprendi requires reversal in spite of Almendarez-Torres. We reject this
attempted characterization. In a different but analogous context, we have specifically
held that “a fact of prior conviction includes not only the fact that a prior conviction
exists, but also a determination of whether a conviction is one of the enumerated
types qualifying for the sentence enhancement.” United States v. Davis, 260 F.3d
965, 969 (8th Cir. 2001) (discussing enhancement under 18 U.S.C. § 3559(c),
requiring a mandatory life sentence on the third conviction of a “serious violent
felony”), cert. denied, 122 S. Ct. 909 (2002). Rejecting the same argument in yet
another recidivism context, the Second Circuit observed that “[j]udges frequently
must make factual determinations for sentencing, so it is hardly anomalous to require
that they also determine the ‘who, what, when, and where’ of a prior conviction.”
United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (considering 18 U.S.C.
§ 924(e)’s “different occasions” requirement for prior crimes). We agree with the
Second Circuit that it is entirely appropriate for judges to have “the task of finding
not only the mere fact of previous convictions but other related issues as well.” Id.
As the law stands now, the sentencing-related circumstances of recidivism are facts
that may be found by the sentencing judge and are not within the scope of Apprendi’s
holding. Accordingly, the statute to which Kempis-Bonola pleaded guilty does not
violate the Sixth Amendment principles articulated in Apprendi, and the district court
committed no error, plain or otherwise.



                                           6
       Kempis-Bonola’s claim also fails on the ground that his sentence did not
exceed the otherwise applicable statutory maximum sentence. In the absence of a
finding that Kempis-Bonola’s prior convictions were “aggravated” felonies under §
1326(b)(2), the 10-year statutory enhancement for a prior generic felony under §
1326(b)(1) would nevertheless apply. Because Kempis-Bonola’s 77-month sentence
is well within the 10-year range authorized for illegal reentry where the alien has a
prior generic felony conviction, it is clear that the increased maximum sentence
provided for an “aggravated” felony played no role in his actual sentence. See
Aguayo-Delgado, 220 F.3d at 934 (finding it proper to apply the sentencing range
that would have applied absent an improper fact-finding by the judge). Thus,
Kempis-Bonola can show no Apprendi error and can make no showing that his
substantial rights were affected by the application of § 1326(b)(2).

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

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




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