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NOT FOR PUBLICATION.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)
Defendant was convicted, in the United States District Court for the Eastern District of California, Anthony W. Ishii, J., of illegal reentry after deportation, and he appealed. The Court of Appeals held that: (1) defendant was not entitled to offense level reduction for acceptance of responsibility, and (2) prior felony convictions were mere sentencing factors.
Affirmed.
Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding.
Before HAWKINS, 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 may be provided by Ninth Circuit Rule 36-3.
Sergio Alfaro-Rojas appeals from his 108-month sentence for illegal reentry after deportation, in violation of 8 U.S.C.
Page 645.
§ 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742, and we affirm.
Alfaro-Rojas first contends that he should have received a three-level reduction in his sentence for acceptance of responsibility, pursuant to USSG§ 3E1.1(a) and (b), based upon his initial confession and limited defense at trial. We review this contention for clear error, giving deference to the sentencing judge's finding. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir.1990). This contention fails.
The district court properly found that Alfaro-Rojas did not demonstrate acceptance of responsibility. He pleaded not guilty, attacked the validity of his confession, refused to discuss his case with the probation officer, and made no statement of contrition at sentencing. See United States v. Innie, 7 F.3d 840, 848 (9th Cir.1993). Because Alfaro-Rojas did not qualify for the two-level adjustment under USSG § 3E1.1(a), he was ineligible for the third point. See USSG § 3E1.1(b).
Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Alfaro-Rojas next contends that because his prior convictions were not alleged in the indictment or proved to the jury, they cannot be used to increase his sentence beyond the two year maximum specified in 8 U.S.C. § 1326(a). This argument is foreclosed by our decision in United States v. Pacheco-Zepeda, 234 F.3d 411-15 (9th Cir.), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).
AFFIRMED.