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NOT FOR PUBLICATION.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 filed motion to vacate. The United States District Court for the District of Oregon, Michael R. Hogan, Chief Judge, denied motion. Defendant appealed. The Court of Appeals held that sentence was valid even though prior aggravated felony conviction was not stated in indictment or proved to jury.
Affirmed.
Appeal from the United States District Court for the District of Oregon Michael R. Hogan, Chief 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.
Federal prisoner Ruben Lopez-Gonzalez appeals the district court's denial of his 28 U.S.C. § 2255 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253, review de novo, see United States v. Chacon-Palomares,
Page 826.
"Palomares, 208 F.3d 1157, 1158 (9th Cir.2000), and affirm.
Lopez-Gonzalez contends that the general rule pronounced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is retroactively applicable to collateral proceedings, that Apprendi overruled or limited Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and, therefore, that his sentence is unconstitutional because his prior aggravated felony conviction was not stated in the indictment, submitted to a jury, and proven beyond a reasonable doubt.
Without deciding whether Apprendi is retroactively applicable to collateral proceedings, we conclude Lopez-Gonzalez's arguments are unavailing. We have previously determined that Apprendi preserves the holding in Almendarez-Torres that prior convictions are sentencing factors, not elements of the offense that need to submitted to a jury and proven beyond a reasonable doubt. United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). Furthermore, in Pacheco-Zepeda, we concluded that this rule is not limited to cases where a defendant admits a prior conviction on the record. Id. Accordingly, the district court properly denied Lopez-Gonzalez's petition.
AFFIRMED.