U.S. v. Garcia-Lonzo

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Julian GARCIA-LONZO…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jun 25, 2001

12 F. App'x 577 (9th Cir. 2001)

Opinion

12 Fed.Appx. 577 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Julian GARCIA-LONZO, Defendant-Appellant. No. 00-50208. D.C. No. CR-99-97-AHS. United States Court of Appeals, Ninth Circuit. June 25, 2001

Submitted June 11, 2001. ¹

1 The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4.

NOT FOR PUBLICATION.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

Defendant was convicted, in the United States District Court for the Central District of California, Alicemarie H. Stotler, J., of illegal reentry, and he appealed sentence. The Court of Appeals held that defendant's sentence could properly be enhanced on ground deportation had followed conviction for aggravated felony without that fact having been charged in indictment, presented to jury, and proved beyond reasonable doubt.

Affirmed.

Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, District Judge, Presiding.

Before O'SCANNLAIN, SILVERMAN, and GOULD, Circuit Judges.

MEMORANDUM ²

2 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 9th Cir. R. 36-3.

Julian Garcia-Lonzo appeals the judgment of conviction and 77-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. Garcia-Lonzo contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), section 1326(b)(2) is unconstitutional because it allows a court to increase the maximum penalty at sentencing, based on whether a defendant was deported subsequent to a prior conviction for an aggravated felony, without submitting this fact to a jury for proof beyond a reasonable doubt. This contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (upholding enhancement where the defendant admitted to underlying felony convictions and subsequent deportation) and by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), as amended (Feb. 8, 2001), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

Page 578.

AFFIRMED. ³

3 The motion of the United States to dismiss the appeal is denied.