U.S. v. Rodriguez-Jimenez

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jun 1, 2001

10 F. App'x 597 (9th Cir. 2001)

Opinion

10 Fed.Appx. 597 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis RODRIGUEZ-JIMENEZ, Defendant-Appellant. No. 00-50124. D.C. No. CR-99-01102-TJH. United States Court of Appeals, Ninth Circuit. June 1, 2001

Submitted May 14, 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NOT FOR PUBLICATION.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)

Defendant was convicted of being illegal alien found in United States following deportation, after entering guilty plea in the United States District Court for the Central District of California, Terry J. Hatter, Jr., J. Defendant appealed. The Court of Appeals held that: (1) sentence could exceed statutory maximum based upon prior felony to which defendant did not admit and which was not proven beyond reasonable doubt to jury, and (2) rule of Almendarez-Torres v. United States was not rendered inapplicable by fact that defendant did not admit that removal was subsequent to conviction for aggravated felony.

Affirmed.

Appeal from the United States District Court for the Central District of California , Terry J. Hatter, Jr., District Judge, Presiding.

Before PREGERSON, FERNANDEZ, and WARDLAW, 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.

Jose Luis Rodriguez-Jimenez appeals the 44-month sentence imposed following his guilty plea for being an illegal alien found in the United States following deportation. Rodriguez-Jimenez contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his sentence must be vacated because it exceeds the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony to which he did not admit and which was not proven beyond a reasonable doubt to a jury. Rodriguez-Jimenez also contends that Apprendi renders inapplicable 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), because he did not admit that his removal from the United States was subsequent to his conviction of an aggravated felony. His arguments are foreclosed by this court's recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), amended (Feb. 8, 2001) (order). United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001). ³

3 We deny as moot defendant's request to stay this appeal pending the outcome of Pacheco-Zepeda.

AFFIRMED.