U.S. v. Vasquez-Cortez

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Adan VASQUEZ-CORTEZ…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 22, 2002

32 F. App'x 263 (9th Cir. 2002)

Opinion

32 Fed.Appx. 263 (9th Cir. 2002) UNITED STATES of America, Plaintiff-Appellee, v. Adan VASQUEZ-CORTEZ, Defendant-Appellant. No. 01-50103. D.C. No. CR-00-00174-LEW/MLR. United States Court of Appeals, Ninth Circuit. February 22, 2002

Submitted February 11, 2002. ^*

* 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NOT FOR PUBLICATION.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)

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding.

Before B. FLETCHER, T.G. NELSON and TALLMAN, Circuit Judges.

MEMORANDUM ^**

** 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.

Adan Vasquez-Cortez appeals his guilty plea conviction and 57-month sentence for one count of 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.

Vasquez-Cortez contends that the district court violated Fed.R.Crim.P. 11(c)(1) by not advising him of the specific elements and not ensuring that he understood the nature of the charge to which he was pleading guilty. Reviewing de novo, United States v. Littlejohn, 224 F.3d 960, 964 (9th Cir.2000), we conclude that the Vasquez-Cortez's contention is unpersuasive.

Page 264.

Review of the plea colloquy demonstrates that Vasquez-Cortez was informed of and understood the nature of the charge against him. Fed.R.Crim.P. 11(c)(1); see United States v. Aguilar-Muniz, 156 F.3d 974, 976-77 (9th Cir.1998). Therefore, the asserted error was harmless. Fed.R.Crim.P. 11(h); see United States v. Smith, 60 F.3d 595, 599 (9th Cir.1995) (quoting advisory committee notes to Fed.R.Crim.P. 11(h) (1983)).

Vasquez-Cortez also contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the existence and nature of a prior felony conviction used to enhance his sentence must be charged in the indictment and proved beyond a reasonable doubt. Vasquez-Cortez further contends that Apprendi limited Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) to its unique facts. His Apprendi contentions are foreclosed by our decisions in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.) (applying plain error review), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (applying de novo review).

AFFIRMED.