Opinion
No. 106,972.
2012-12-21
STATE of Kansas, Appellee, v. Robert ENRIQUEZ, Appellant.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM.
Robert Enriquez filed a motion for summary disposition of his sentencing appeal pursuant to K.S.A.2011 Supp. 21–6820(g) and (h). The State did not respond to Enriquez' motion. We have reviewed the record on appeal and find no error in the sentence imposed by the district court.
Enriquez first contends the use of his criminal history for sentencing purposes in district court case No. 10CR850, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his offense of sale of hydromorphone within 1,000 feet of school property in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This issue has already been decided adversely to Enriquez and is without merit. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Enriquez also contends the district court abused its discretion by denying his motion for a downward dispositional sentencing departure. The district court sentenced Enriquez to a presumptive term of imprisonment for his offense. We are without jurisdiction to consider this issue. See K.S.A.2011 Supp. 21–6820(c)(1) (appellate court shall not review any sentence within the presumptive sentencing range for the crime); State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721[c][1] eliminates appeals of presumptive sentences).
Affirmed in part and dismissed in part pursuant to Rule 7.041a (2011 Kan. Ct. R. Annot. 60).