U.S. v. Peralta-Moran

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Ezequiel PERALTA-MORAN…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 18, 2001

8 F. App'x 668 (9th Cir. 2001)

Opinion

8 Fed.Appx. 668 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Ezequiel PERALTA-MORAN, Defendant-Appellant. No. 00-30031. D.C. No. CR-99-30055-1-MRH. United States Court of Appeals, Ninth Circuit. April 18, 2001

Submitted April 9, 2001. ¹

1 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NOT FOR PUBLICATION.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)

After entering guilty plea, defendant was convicted in the United States District Court for the District of Oregon, Michael R. Hogan, Chief Judge, of being found in the United States following deportation, and was sentenced to term of 77 months' imprisonment. Defendant appealed, challenging his sentence. The Court of Appeals held that Apprendi did not bar consideration at sentencing of defendant's prior aggravated felony convictions, which were neither charged in the indictment nor admitted at his plea.

Affirmed.

Page 669.

Appeal from the United States District Court for the District of Oregon Michael R. Hogan, Chief Judge, Presiding.

Before CANBY, KOZINSKI and RYMER, 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.

Ezequiel Peralta-Moran appeals the 77-month sentence following a guilty plea conviction for being 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.

Medina-Arias contends that the district court erred by enhancing 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), on the basis that his prior aggravated felony convictions were neither charged in the indictment nor admitted at his plea. Medina-Arias' contention, however, is foreclosed by our decision in United States v. Pacheco-Zepeda, No. 99-50720 (9th Cir.) (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 not elements of the offense), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (No. 00-8814). The district court therefore properly considered Medina-Arias' prior aggravated felony convictions in sentencing him. See Pacheco-Zepeda, 2000 WL 33156290, at *5.

AFFIRMED.