                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 06-1080
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      District of Minnesota.
Rodolfo Lopez-Zepeda,                    *
                                         *
            Appellant.                   *

                               ________________

                               Submitted: September 26, 2006
                                   Filed: October 24, 2006
                               ________________

Before MURPHY, HANSEN and RILEY, Circuit Judges.
                       ________________

HANSEN, Circuit Judge.

       Rodolfo Lopez-Zepeda appeals a 46-month sentence imposed upon him by the
district court1 after he pleaded guilty to one count of illegal reentry by a removed
alien. See 8 U.S.C. § 1326(a), (b)(2) (2000). Lopez-Zepeda argues that the district
court erred by including a 16-level enhancement in his advisory Guidelines sentence
after determining that his previous state-court conviction constituted "a crime of
violence." See U.S. Sentencing Guidelines Manual (USSG) § 2L1.2(b)(1)(A)(ii)

      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
(2005). He also argues that the enhanced maximum penalty provision of § 1326(b)(2)
is unconstitutional. We affirm.

                                          I.

       In 2001, Lopez-Zepeda pleaded guilty in Minnesota state court to one count of
third-degree criminal sexual conduct. See Minn. Stat. § 609.344(1)(c) (2000)
(defining the crime as engaging in sexual penetration with another person and using
"force or coercion to accomplish the penetration"). He was subsequently deported to
Mexico on February 2, 2004. Lopez-Zepeda illegally returned to the United States
and was found residing in Minnesota in November 2004.

       A one-count federal indictment charged Lopez-Zepeda with illegal reentry after
deportation subsequent to his removal for the conviction of an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b)(2). Lopez-Zepeda entered into a plea
agreement with the Government, admitting his illegal reentry but disputing the
applicability of a 16-level sentencing enhancement in the Guidelines calculation for
having committed a prior "crime of violence," USSG § 2L1.2(b)(1)(A)(ii). The plea
agreement recognized that § 1326(b)(2) prescribed the maximum available sentence
of 20 years. Defense counsel preserved a constitutional challenge to the penalty
statute, asserting that the increased 20-year maximum penalty violates the Sixth
Amendment right to a jury determination of all facts that increase the applicable
maximum sentence. Defense counsel acknowledged, however, that the Supreme
Court has already ruled that § 1326(b)(2) is constitutional. See Almendarez-Torres
v. United States, 523 U.S. 224, 226-27 (1998).

       At sentencing, Lopez-Zepeda argued that a 16-level enhancement on the ground
that his prior offense was "a crime of violence" was not warranted because his prior
crime lacked the requisite element of force. Specifically, he argued that his testimony
during the state court plea hearing concerning the use of force was ambiguous and

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therefore does not provide a factual basis to support the enhancement. The district
court considered the state court conviction and the statutory definition of the crime,
as well as the complaint and the plea colloquy. The court found that Lopez-Zepeda
plainly admitted to forcing the victim to have sexual intercourse with him against her
will. As to possible ambiguities in the testimony asserted by defense counsel, the
district court noted that time and again in the plea transcript Lopez-Zepeda admitted
to participating with another in forcing the victim to have sex, despite a few contrary
statements as well. (See Sent. Tr. at 19) ("There are admissions to forcing her to have
sex. There . . . is surely language that goes the other way as well . . . ."). Given the
entire record, the district court found that the 2001 Minnesota conviction was "a crime
of violence" within the meaning of USSG § 2L1.2(b)(1)(A)(ii), and accordingly
added the 16-level enhancement into the Guidelines calculation. The district court
imposed a 46-month Guidelines sentence at the bottom of the advisory range. Lopez-
Zepeda appeals.

                                          II.

       We apply de novo review when considering the district court's interpretation
and application of the Sentencing Guidelines, and we review its fact-findings for clear
error. United States v. Urbina-Mejia, 450 F.3d 838, 839 (8th Cir. 2006). Lopez-
Zepeda first challenges the district court's determination of his advisory Guidelines
sentence, asserting that the court erred in imposing the 16-level increase to his base
offense level for a prior conviction of "a crime of violence."                   USSG
§ 2L1.2(b)(1)(A)(ii). The Guidelines define "a crime of violence" as including,
among other things, "forcible sex offenses . . . or any offense under federal, state, or
local law that has as an element the use, attempted use, or threatened use of physical
force against the person of another." USSG § 2L1.2, comment. (n.1(B)(iii)).

      To determine whether a defendant's prior conviction was for "a crime of
violence" within the meaning of USSG § 2L1.2(b)(1)(A)(ii), we generally employ a

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categorical approach. United States v. Vasquez-Garcia, 449 F.3d 870, 872 (8th Cir.
2006). Under this approach, the district court may consider the fact of conviction and
the statutory definition of the prior offense. Id. If the statute criminalizes both
conduct that would qualify as a crime of violence and conduct that would not, the
court may consider the terms of the charging document or plea agreement as well as
a transcript in which the defendant confirmed the factual basis for his plea in order to
determine whether the prior conviction was for a crime of violence. Id. (citing
Shepard v. United States, 544 U.S. 13, 21, 26 (2005), and Taylor v. United States, 495
U.S. 575, 602 (1990)).

      Lopez-Zepeda argues that the Minnesota statute defines third-degree criminal
sexual conduct as engaging in sexual penetration "by force or coercion," Minn. Stat.
§ 609.344(1)(c) (emphasis added), and thus, he argues that it is unclear whether the
element of force was necessary to his conviction. See State v. Leake, 699 N.W.2d
312, 323-24 (Minn.) (holding third-degree criminal sexual conduct can be
accomplished "by coercion alone, force alone, or both force and coercion"), cert.
denied, 126 S. Ct. 745 (2005). The Government counters that Lopez-Zepeda's prior
conviction is a crime of violence under the Guidelines because both the use of force
and Minnesota's definition of "coercion"2 fall within the Guidelines definition of "a
crime of violence," and also, the actual facts stated in the state court plea colloquy
support the district court's finding that force was an element of the prior offense.



      2
       The Minnesota Statutes define "coercion" as meaning:

      words or circumstances that cause the complainant reasonably to fear
      that the actor will inflict bodily harm upon, or hold in confinement, the
      complainant or another, or force the complainant to submit to sexual
      penetration or contact, but proof of coercion does not require proof of a
      specific act or threat.

Minn. Stat. § 609.341(14).
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       We find it unnecessary to determine today whether Minnesota's definition of
"coercion" meets the Guideline's definition of "a crime of violence" because the
district court's decision in this case rested on the finding that the charging documents
and the plea colloquy demonstrate factually that Lopez-Zepeda committed the prior
crime by force. The charging document states that the victim, a 16-year-old girl,
reported drinking beer in an apartment with Lopez-Zepeda and a man named Juan
Jose Hernandez. She stated that when she tried to leave, Hernandez grabbed her by
the neck and forced her into a bedroom where the two men forcibly removed her
clothes and had sexual intercourse with her against her will multiple times. She said
that Hernandez threatened to kill her if she told anyone, that Hernandez dragged her
by the hair, and that she finally escaped into the hall of the apartment building and
began pounding on doors for help.

        The transcript of Lopez-Zepeda's guilty plea in state court confirms that the
three were drinking together in an apartment, that Lopez-Zepeda took off the victim's
clothes, that he had sexual intercourse with her after she had said no, and that he
continued having intercourse with her against her will. Lopez-Zepeda testified that
Hernandez raped her too and that Hernandez then dragged her to the bathroom by the
hair, and she ran out, escaping into the hall. Specifically, Lopez-Zepeda was asked,
"[A]fter she said no, you forced her to have sex, is that correct?" and through an
interpreter he answered, "Yes." (Appellant's Add. at B-15.) When questioned
concerning his tape-recorded statement, Lopez-Zepeda answered that he had told the
police officer the truth. He admitted in that recorded statement that he and Hernandez
had used force to get the victim to engage in intercourse. Later in the plea colloquy,
Lopez-Zepeda backpedaled a bit, stating that Hernandez had thrown her onto the bed,
held her hands down, and made threats to her, but that he (Lopez-Zepeda) had not
used force. (Id. at 18.) However, when again specifically asked, "And you
understand that by pleading guilty today you're admitting that you acted with Mr.
Hernandez to force her to have sex?" he answered through an interpreter, "Yes." (Id.
at 19.)

                                          -5-
      Based on this record, the district court did not clearly err in finding that Lopez-
Zepeda's prior state-court conviction was "a crime of violence" under the Guidelines
because the offense involved both the use and threatened use of physical force.
Accordingly, the 16-level enhancement of USSG § 2L1.2(b)(1)(A)(ii) was
appropriately applied to the calculation of his advisory Guidelines sentencing range.

       Lopez-Zepeda also argues that the enhanced 20-year maximum sentence of
8 U.S.C. § 1326(b)(2), imposed on the basis of his prior conviction for an aggravated
felony, violates his Sixth Amendment rights, although he acknowledged at sentencing
that the argument was foreclosed by Supreme Court precedent. He nevertheless
asserts on appeal that the statute unconstitutionally required the district court to
engage in fact-finding in order to determine whether his prior conviction qualified as
an aggravated felony under § 1326(b)(2). We apply de novo review to constitutional
questions. United States v. Clemmons, 461 F.3d 1057, 1061 (8th Cir. 2006).

        We have repeatedly rejected this type of claim on the basis of Supreme Court
precedent, and we do so again today. See Apprendi v. New Jersey, 530 U.S. 466, 490
(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.") (emphasis added); Almendarez-Torres, 523 U.S.
at 226-27 (holding that § 1326(b)(2) is a sentencing factor and not a separate criminal
offense that must be set forth in the indictment). "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." United States v. Kempis-
Bonola, 287 F.3d 699, 702 (8th Cir.), cert. denied, 537 U.S. 914 (2002). See, e.g.,
United States v. Carrillo-Beltran, 424 F.3d 845, 848 (8th Cir. 2005), cert. denied, 126
S. Ct. 1384 (2006); United States v. Marcussen, 403 F.3d 982, 984 (8th Cir.), cert.
denied, 126 S. Ct. 457 (2005). Additionally, we have previously "rejected the
argument that the nature of a prior conviction is to be treated differently from the fact

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of a prior conviction." Marcussen, 403 F.3d at 984. For these reasons, Lopez-
Zepeda's Sixth Amendment challenge to § 1326(b)(2) fails.

                                      III.

     Accordingly, we affirm the judgment of the district court.
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