Opinion
This panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted by jury in the United States District Court for the District of Arizona, Roslyn O. Silver, J., of illegal reentry after deportation. Defendant appealed. The Court of Appeals held that: (1) enhanced sentence based on prior felony was valid, and (2) court lacked jurisdiction to review discretionary refusal to grant downward sentencing departure.
Affirmed.
Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, 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.
Luis Navarro-Bravo appeals the 63-month sentence imposed following his jury trial conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326. Navarro-Bravo contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony which was not pled in
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the indictment and which was not submitted to the jury and proven beyond a reasonable doubt. Navarro-Bravo is correct that this court has specifically rejected the contention that Apprendi has overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense). Navarro-Bravo's arguments are foreclosed under 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).
We lack jurisdiction to review the district court's discretionary refusal to grant Navarro-Bravo's requests to depart downward from the Sentencing Guidelines. United States v. Tam, 240 F.3d 797, 805 (9th Cir.2001).
AFFIRMED.