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NOT FOR PUBLICATION.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 pleaded guilty in the United States District Court for the District of Nevada, Howard D. McKibben, J., to being deported alien found in United States. Defendant appealed. The Court of Appeals held that Apprendi rule did not require that fact of prior aggravated felony conviction be proved to jury beyond a reasonable doubt.
Affirmed.
Page 781.
Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding.
Before KLEINFELD, McKEOWN, and FISHER, 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.
Oscar Espinoza-Armenta appeals from his conviction and 41-month sentence following his guilty plea to a single count of being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). Espinoza-Armenta originally sought a remand to the district court with directions to correct the judgment of conviction to exclude a reference to 8 U.S.C. § 1326(b)(2) under United States v. Herrera-Blanco, 232 F.3d 715 (9th Cir.2000). The district court has since corrected the judgment.
Espinoza-Armenta also contends that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires a remand to the district court because a prior aggravated felony conviction should be a fact determined by a jury and proven beyond a reasonable doubt. Espinoza-Armenta acknowledges that this issue is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), (cert. denied), 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and raises the issue solely in order to preserve it in the event the Supreme Court decides differently in the future. Thus, we do not consider it further.
AFFIRMED.