                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3177
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Juan Carrillo-Beltran,                  *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 20, 2005
                                Filed: September 29, 2005
                                 ___________

Before RILEY, BOWMAN, and BENTON, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Juan Carrillo-Beltran (Carrillo-Beltran) pled guilty to possession with intent
to distribute more than one kilogram of heroin, in violation of 21 U.S.C. § 841(a)(1).
The district court1 sentenced Carrillo-Beltran to 120 months’ imprisonment and 5
years’ supervised release. Carrillo-Beltran appeals, arguing the district court erred
in finding Carrillo-Beltran had a prior drug conviction, in violation of Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We affirm.


      1
       The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
I.     BACKGROUND
       Carrillo-Beltran was arrested after a consent search of his vehicle uncovered
1.61 kilograms of heroin hidden inside the passenger-side airbag compartment. Upon
arrest, and after waiving his Miranda2 rights, Carrillo-Beltran indicated he wanted to
cooperate fully with the arresting agents. Carrillo-Beltran later signed a plea
agreement in which he admitted these facts.

       Carrillo-Beltran later pled guilty to possession with intent to distribute over one
kilogram of heroin, in violation of 21 U.S.C. § 841(a)(1). Although Carrillo-Beltran
and the government agreed Carrillo-Beltran’s estimated total offense level under the
United States Sentencing Guidelines (Guidelines) would be 25, Carrillo-Beltran
admitted he “fully underst[ood] that . . . the crime to which [he pled] guilty” required
a mandatory term of imprisonment of at least 10 years. Carrillo-Beltran and the
government agreed Carrillo-Beltran’s criminal history would be decided by the
district court after review of the Pre-Sentence Investigation Report (PSR).
Furthermore, the parties mutually agreed to waive all rights to appeal, with the
exception of any upward or downward departure from the Guidelines range not
agreed to in the plea agreement.

       Under 21 U.S.C. § 841(b)(1)(A), a criminal who possesses over one kilogram
of heroin with intent to distribute “shall be sentenced to a term of imprisonment
which may not be less than 10 years or more than life.” Carrillo-Beltran’s only hope
for a prison sentence less than 10 years (120 months) was to qualify for the safety
valve provision set forth at 18 U.S.C. § 3553(f). The safety valve provision mandates
that the court sentence a defendant in accordance with the Guidelines without regard
to any statutory minimum sentence, if the court finds the defendant meets five
statutory requirements. See 18 U.S.C. § 3553(f). The first of the five requirements
is “the defendant does not have more than 1 criminal history point, as determined


      2
       Miranda v. Arizona, 384 U.S. 436 (1966).

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under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1). Thus, if Carrillo-Beltran
had more than one criminal history point, the district court could not apply section
3553(f)(1), and Carrillo-Beltran’s presumptive sentence would be a minimum of 120
months, rather than the 46- to 57-month range he argues was his presumptive
sentence pursuant to the Guidelines and section 3553(f).

       The PSR showed Carrillo-Beltran, under the alias “Francisco Espiritu Atrisco”
(Atrisco), had a prior conviction for possession, sale, and transportation of a
controlled substance. Carrillo-Beltran objected to the PSR’s inclusion of the prior
conviction under the name Atrisco, arguing the court could not determine Atrisco and
he are the same person without violating Carrillo-Beltran’s Sixth Amendment rights.
At the sentencing hearing on September 2, 2004, the government and Carrillo-Beltran
stipulated that an examiner’s comparison of a fingerprint card for Carrillo-Beltran to
a fingerprint card for Atrisco led the examiner to conclude both sets of fingerprints
were made by the same person. Finding Carrillo-Beltran and Atrisco were the same
person, the district court attributed the prior conviction to Carrillo-Beltran. Because
Carrillo-Beltran did not qualify for the safety valve provision, the district court
sentenced him to 120 months’ imprisonment and five years’ supervised release.
Carrillo-Beltran appeals, arguing the district court’s finding violates Blakely, because
the court was required to submit to a jury whether Carrillo-Beltran was the same
person as the defendant in the prior conviction.

II.    DISCUSSION
       “Decisions regarding offenses counted in a criminal history calculation are
factual determinations subject to clear-error review.” United States v. Townsend, 408
F.3d 1020, 1022 (8th Cir. 2005) (citing United States v. Paden, 330 F.3d 1066, 1067
(8th Cir. 2003)).

      Ample authority supports the district court’s finding that the prior conviction
was attributable to Carrillo-Beltran. In Almendarez-Torres v. United States, 523 U.S.

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224, 235, 239-47 (1998), the Supreme Court ruled a prior felony conviction is a
sentencing factor for the court, not a fact issue for the jury. See also United States v.
Wilson, 406 F.3d 1074, 1075 (8th Cir. 2005). Following its decision in Almendarez-
Torres, the Court has reaffirmed this principle on numerous occasions. See Apprendi
v. New Jersey, 530 U.S. 466, 489 (2000) (“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.”); see
also United States v. Booker, 125 S. Ct. 738, 748, 756 (2005) (reaffirming the
Apprendi principle that the fact of a prior conviction need not be determined by the
jury); Blakely, 542 U.S. at ___, 124 S. Ct. at 2536 (same). The Supreme Court has
not overruled its decisions in Almendarez-Torres and Apprendi, and the Court’s
recent sentencing cases, including Shepard v. United States, 125 S. Ct. 1254 (2005),
have not abandoned the rule that a court–and not a jury–may consider prior criminal
history in sentencing a defendant. See United States v. Mattix, 404 F.3d 1037, 1038
(8th Cir. 2005) (per curiam). Thus, it is well settled at this time that a district court
may determine the fact of a prior conviction.

       In this case, the only “twist” on the well-settled principles of Booker, Blakely,
Apprendi, and Almendarez-Torres is Carrillo-Beltran argues the prior conviction
included in the PSR was attributable to Atrisco, and therefore was not a “fact” exempt
from a reasonable doubt determination by a jury. His contention is unsupported by
the law.

       While determining whether a prior conviction under an alias is attributable to
a defendant seemingly involves a finding of fact beyond the “fact of a prior
conviction” (which clearly is allowed under Supreme Court precedent), such an
additional finding is “intimately related” to the prior conviction and does not violate
the Sixth Amendment. See United States v. Moore, 401 F.3d 1220, 1225 (10th Cir.
2005) (quoting United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004)). “To the
extent that [Carrillo-Beltran] claims that the determination[] at issue require[s] the

                                          -4-
finding of facts beyond the mere fact of a prior conviction, the same result obtains.”
Wilson, 406 F.3d at 1075. As we stated in United States v. Marcussen, 403 F.3d 982
(8th Cir. 2005), “we previously have rejected the argument that the nature of a prior
conviction is to be treated differently from the fact of a prior conviction.” Id. at 984
(citing United States v. Kempis-Bonola, 287 F.3d 699, 703 (8th Cir. 2002), and
United States v. Davis, 260 F.3d 965, 969 (8th Cir. 2001)).

       Carrillo-Beltran did not specifically object to the PSR’s characterization of the
facts and conclusion that Carrillo-Beltran was the same person as Atrisco. Carrillo-
Beltran stipulated to the fingerprint examiner’s conclusion the two sets of fingerprints
“were made by the same person.” His only objection was to the fact his name was not
used in the prior conviction, thus requiring a factual finding that he was the same
person as Atrisco. This convoluted objection to the PSR has the ring of an admission.
United States v. Thorn, 413 F.3d 820, 823 (8th Cir. 2005) (“Facts presented in a PSR
are deemed admitted by a defendant unless the defendant objects to the inclusion of
those facts.”) (citations omitted). “Sentencing courts do not violate the Sixth
Amendment when they rely on facts admitted by a defendant in calculating the
defendant’s sentence.” Id. (citing Booker, 125 S. Ct. at 756).

       To allow a defendant to obtain a jury trial on whether a prior conviction under
an alias is attributable to the defendant (after the defendant has stipulated to a
fingerprint match for the alias and the defendant) offends traditional notions of
justice. A court must be allowed to determine not only the “fact of a prior
conviction” but also those facts so “intimately related” to the prior conviction to fall
within the Apprendi exception. See Moore, 401 F.3d at 1225. The determination at
sentencing whether the defendant has prior convictions–even under aliases–falls
within this principle. Therefore, the district court’s finding that Carrillo-Beltran had
a prior conviction under an alias was not clearly erroneous and does not violate the
Sixth Amendment.



                                          -5-
III.   CONCLUSION
       Under 18 U.S.C. § 841(b)(1)(A), Carrillo-Beltran’s presumptive sentencing
range was a mandatory minimum of 120 months, unless he was eligible for the safety
valve provision under 18 U.S.C. § 3553(f)(1). Carrillo-Beltran could not take
advantage of the safety valve if he had “more than 1 criminal history point.” 18
U.S.C. § 3553(f)(1). Because the district court did not err in finding Carrillo-Beltran
had a prior conviction under an alias, Carrillo-Beltran was not entitled to safety valve
relief. Thus, the district court did not err in sentencing Carrillo-Beltran.

      For the foregoing reasons, we affirm Carrillo-Beltran’s conviction and
sentence.
                     ______________________________




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