United States v. Zamudio-Martinez

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3945
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Sandro Zamudio-Martinez, also * [UNPUBLISHED]
known as Alfredo Perez *
Martinez, also known as Alfred *
Martinez Perez, *
*
Appellant. *
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Submitted: July 2, 2003
Filed: July 8, 2003
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Before WOLLMAN, FAGG, and HANSEN, Circuit Judges.
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PER CURIAM.
Sandro Zamudio-Martinez pleaded guilty to unlawfully reentering the United
States following deportation, in violation of 8 U.S.C. § 1326(a). The district court1
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The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
sentenced Zamudio-Martinez to 57 months of imprisonment and 3 years of supervised
release. He appeals his sentence, and we affirm.
For reversal, Zamudio-Martinez first argues that the district court lacked
authority to sentence him under 8 U.S.C. § 1326(b) because the indictment charged
only a violation of section 1326(a). The argument is unavailing, however, because
section 1326(b) does not define a crime separate from section 1326(a). See
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998).
Zamudio-Martinez also argues that the district court should not have assessed
2 criminal history points for committing the instant offense while he was serving a
term of probation, see U.S.S.G. § 4A1.1(d), because he never signed a probation
contract and thus was not under a probation sentence at the time of his illegal reentry.
We disagree. The district court did not err in rejecting Zamudio-Martinez’s legally
unsupported contention that his failure to enter into a probation contract, as required
by the terms of the state-court order imposing the sentence of probation, somehow
negated his probationary status. See United States v. Blanton, 281 F.3d 771, 775 (8th
Cir. 2002) (district court’s findings of fact reviewed for clear error; interpretation and
application of Guidelines reviewed de novo).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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