U.S. v. Solis-Carrera

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo SOLIS-CARRERA…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 23, 2001

17 F. App'x 597 (9th Cir. 2001)

Opinion

17 Fed.Appx. 597 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo SOLIS-CARRERA, Defendant-Appellant. No. 00-10582. D.C. No. CR-00-00033-DWH(RAM). United States Court of Appeals, Ninth Circuit. August 23, 2001

Submitted August 14, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant was convicted in the United States District Court for the District of Nevada, David Warner Hagen, J., pursuant to statute governing reentry of removed aliens. Defendant appealed. The Court of Appeals held that defendant's prior felony conviction was not offense element that had to be submitted to jury.

Affirmed in part; reversed in part.

Appeal from the United States District Court for the District of Nevada David Warner Hagen, District Judge, Presiding.

Before POLITZ, ^** KOZINSKI and O'SCANNLAIN, Circuit Judges.

** The Honorable Henry A. Politz, Senior Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.

MEMORANDUM ^***

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

As the government concedes, the district court erred in entering a judgment reflecting

Page 598.

that defendant was convicted of both 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2). On remand the district court shall correct the judgment to reflect conviction of only the former offense.

The district court did not abuse its discretion in sentencing defendant consecutively. See United States v. Warren, 980 F.2d 1300, 1306 (9th Cir.1992), cert. denied, 510 U.S. 950, 114 S.Ct. 397, 126 L.Ed.2d 344 (1993); U.S. Sentencing Guidelines Manual § 5G1.3(c). The two-point downward departure accounted for the time defendant served on his state sentence.

Nor did the district court err in failing to submit defendant's sentence enhancement to the jury. Defendant's prior felony conviction is a sentencing factor, not a separate criminal offense requiring jury deliberation. Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000), amended on grant of reh'g (Feb. 8, 2001), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

AFFIRMED IN PART; REVERSED IN PART.