Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the District of Hawai'i, Alan C. Kay, J., of being a deported alien found in the United States. Defendant appealed, challenging his sentence. The Court of Appeals held that use of defendant's prior aggravated felony convictions as basis to enhance his sentence did not violate his rights under Apprendi.
Affirmed.
Page 458.
Appeal from the United States District Court for the District of Hawaii, Alan C. Kay, 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.
Omar Osvaldo Roldan-Palacios appeals the judgment of conviction and his 46 month sentence following his guilty plea to a single count of being a deported alien found in the U.S. in violation of 8 U.S.C. § 1326. Roldan-Palacios 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 by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) on the basis of a prior conviction for an aggravated felony that was not charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt. Roldan-Palacios 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). These 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).
AFFIRMED.