Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
James P. Hagarty, Esq., Office of the U.S. Attorney, Yakima, WA, for Plaintiff-Appellee.
Elizabeth Dahlstrom, Esq., Federal Defenders of Eastern Washington & Idaho, Yakima, WA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, U.S. District Judge, Presiding. D.C. No. CR-03-02168-RHW.
Before: KLEINFELD, TASHIMA and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Pedro Tabares-Rivera appeals the sentence imposed following his guilty plea to being an alien found in the United States after deportation in violation of 8 U.S.C. § 1326(a). Tabares-Rivera asserts that the elements of 8 U.S.C. § 1326(b)(2) must be pled in the indictment and proved to a jury beyond a reasonable doubt. We disagree and affirm.
The indictment here did not specifically charge that Tabares-Rivera committed an offense under § 1326(b)(2); it charged him under § 1326. As the Supreme Court has clearly held, that was proper because § 1326(b)(2) "is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute not the Constitution requires the Government to charge the factor that it mentions, an earlier conviction, in the indictment." Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).
Tabares-Rivera argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), changes that. It does not. See United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000). Nor does Blakely v. Washington, --- U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004). Finally, as we said in Pacheco-Zepeda, 234 F.3d at 414, we cannot "ignore controlling Supreme Court authority. Unless and until Almendarez
Page 765.
Torres is overruled by the Supreme Court, we must follow it."
AFFIRMED.