Opinion
The 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NOT FOR PUBLICATION.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 Central District of California, Edward Rafeedie, J., to being an illegal alien found in the United States following deportation, and was sentenced to 51-month imprisonment. Defendant appealed sentence. The Court of Appeals held that prior aggravated felony did not have to be charged in the indictment or admitted at plea to be a sentencing factor.
Affirmed.
Appeal from the United States District Court for the Central District of California, Edward Rafeedie, District Judge, Presiding.
Before LEAVY, THOMAS, and RAWLINSON, 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 9th Cir. R. 36-3.
Manuel Salvador Lozano-Hernandez appeals his 51-month sentence imposed following a guilty plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Lozano-Hernandez contends that the district court erred by enhancing his sentence pursuant to U.S. S.G. § 2L1.2 for a prior aggravated felony which was neither charged in the indictment nor admitted at his plea, but which increased his sentence above the applicable statutory maximum penalty, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Lozano-Hernandez's contention is foreclosed by our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000) (concluding that Apprendi preserves the rule in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that prior convictions are sentencing factors and need not be charged in the indictment, admitted on the record, or proved beyond
Page 451.
Although, due to an erroneous docket entry, the United States technically did not have the opportunity to respond to defendant's Opening Brief, we deny as moot the United States' request to file a brief.
AFFIRMED.